Written by:

Dr Matthew Storey

Matthew is a solicitor who has worked with and for Traditional Owners in the areas of native title and land rights, cultural heritage, business development and natural resource management for over 35 years.

Written by:

Abstract

This article considers two of the consequences that flowed from the destruction of Aboriginal cultural heritage at Juukan Gorge by Rio Tinto. First, the Parliamentary Inquiry into the Juukan Gorge destruction is examined: the submissions to the Inquiry, its Reports and the subsequent Government Response to it. The process of Indigenous Cultural Heritage legislative reform initiated by the previous Commonwealth Government and adopted by the current Government is also examined. The focus is to identify the influence of contemporary international legal norms and expectations on domestic reform activity around Indigenous Cultural Heritage legislation. The particular thesis under investigation is that such norms and expectations, in particular as articulated in the United Nations Declaration on the Rights of Indigenous Peoples, are developing a normative weight well in excess of their formal non-binding international legal status.

1       Introduction

On 24 May 2020,as part of the expansion of its Brockman 4 Mine, the Rio Tinto Corporation destroyed the Juukan Gorge in the Pilbara region of Western Australia, a site rich in Aboriginal Cultural heritage located on the lands of the Puutu Kunti Kurrama and Pinikura (PKKP) people. Subsequent evidence showed that Rio Tinto investigated several options for the expansion of the mine. The option that included the destruction of Juukan Gorge generated an additional revenue of

$135m over the other options evaluated. Rio Tinto has a global annual revenue of $43.165 billion.

The destruction was authorised under the Aboriginal Heritage Act 1972 (WA)(Aboriginal Heritage Act) which was in operation at that time and did not breach an Indigenous Land Use Agreement under the Native Title Act 1993 (Cth) (NTA) between Rio Tinto and the PKKP people. No application for protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)(ATSIHPA) was made in relation to the destruction.

Despite the apparent legality of the action, the destruction of Juukan Gorge caused outrage both nationally and internationally. The senior leadership of Rio Tinto apologised for the action and instigated a review of its actions headed by a prominent non-executive board member. The respected organisation, Reconciliation Australia, revoked its endorsement of Rio Tinto’s “Elevate” Reconciliation Action Plan (RAP) and suspended Rio Tinto from the RAP Program. Large institutional investors such as the global fund manager, Aberdeen Standard Investors, and superannuation funds, Australian Super, HESTA, and the British public sector fund group, the Local Authorities Pension Fund Forum, all announced they were reviewing their investments in Rio Tinto. Ultimately the Rio Tinto Board dismissed the company’s Chief Executive Officer and other relevant senior executives in response to the incident.1

There were also political ramifications. Rio Tinto’s actions were condemned by politicians from both sides of politics. On 11 June 2020, the Australian Senate resolved to refer to the Joint Standing Committee on Northern Australia (JSCNA; the Committee) an inquiry (Inquiry into the Destruction of 46,000 Year Old Caves at the Juukan Gorge in the Pilbara Region of Western Australia; the Inquiry) into thedestruction.2 InJuly 2020, the then Minister for the Environment (the Hon Sussan Ley MP)announced a commitment to develop a national engagement process for modernising the protection of First Nations cultural heritage. Following this, in November2021, Minister Ley entered into a Partnership Agreement with a coalition of more than thirty Aboriginal and Torres Strait Islander land councils and other State, Territory and national First Nations organisations3 to commence a co- design process fort he development of options for Indigenous Cultural Heritage (ICH) legislative reform.

The objective of this article is to examine these last two political responses to the destruction of Juukan Gorge: the Inquiry, its reports and the subsequent Government Response to that Inquiry; and the co-design process established between the Commonwealth Government and the First Nations Heritage Protection Alliance (FNHPA).

Of course, reform of ICH legislation at a national level has been contemplated for many years. It has long been a central tenet of First Nations advocacy in the area of land rights and a key feature of the interaction between First Nations and the resources sector. The Hawke Labor Government first committed in 1983 to national land rights legislation that included ICH protections. ATSIHPA was the interim product of the first of these attempts under the Hawke Government in 1984. As history records, the Hawke Labor Government abandoned that commitment under pressure from the resources sector in March 1986.4

The objective of the examination of the contemporary political responses to the desecration of Juukan Gorge is to seek to identify the influence of contemporary international legal norms and expectations on domestic reform activity in the area of ICH legislation. The particular thesis under investigation is that such contemporary international legal norms and expectations, in particular as articulated in the United Nations Declaration on the Rights of Indigenous Peoples5 (UNDRIP) are developing a normative weight well in excess of their formal non-binding international legal status.6 Assessing the impact of these international legal norms and expectations has relevance beyond the current topic. The extent to which the thesis can be considered accurate will have implications for the development of both ICH regimes and domestic legal regimes regarding other issues addressed in UNDRIP in Australia and in many other jurisdictions. As will be discussed, central to this broader development are the varying interpretations of the principle of free, prior and informed consent.

This article proceeds in three broad parts following this Introduction. Part 2, which comprises the main substance of the article, examines the background to the Inquiry, the two reports that emanated from it, the submissions that were made to the Inquiry and the Government Response to the reports which was released in November 2022.7

Part 3 examines the structure of and the documentation around the legislative reform co-design process. It identifies and explores the three models for legislative reform that are currently the subject of consultations. It identifies that one common feature of these three models is the centrality of incorporation of key principles from UNDRIP.

The article then concludes by suggesting that, while there have been many unsuccessful attempts at ICH legislative reform in Australia since the 1980s, there is a particular distinguishing feature about the current discourse in this area. That feature is the development of international law regarding Indigenous Peoples’ rights regarding control over their cultural heritage and the growing acceptance of these legal norms by the international community including within the resources industry and its representative organisations. The conclusion suggests the resources industry’s international stance regarding Indigenous Peoples’ rights in this regard will make attempts to seek lower domestic legislative standards both untenable and unsuccessful.

2       The Inquiry

2.1        Background

The JSCNA was established by resolution of both the House of Representatives and the Senate. It is necessary therefore that the Committee is (re-)established after each election as the Committee formally dissolves with the proroguing of each parliament. With the convening of the 47th Parliament following the May 2022 general election, the JSCNA was not re-established and many of its functions were allocated to the new Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs.

Between 2016 and April 2022, the JSCNA comprised ten members: five from the House of Representatives (three from the Government and two from the Opposition) and five from the Senate (two Government, two Opposition and one crossbench Senator). The Committee’s function during this period included conducting inquiries into “such matters relating to the development of Northern Australia as may be referred to it by either House of the Parliament or a Minister.”8

The Terms of Reference for the Inquiry were as follows:

(a)      the operation of the Aboriginal Heritage Act 1972 (WA) and approvals provided under the Act;

(b)      the consultation that RioTinto engaged in prior to the destruction of the caves with Indigenous peoples;

(c)      the sequence of events and decision-making process undertaken by Rio Tinto that led to the destruction;

(d)      the loss or damage to the Traditional Owners, Puutu, Kunti Kurrama and Pinikura people, from the destruction of the site;

(e)      the heritage and preservation work that has been conducted at the site;

(f)       the interaction of State Indigenous heritage regulations with Commonwealth laws;

(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;

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

(i)       opportunities to improve Indigenous heritage protection through the Environment Protection and Biodiversity Conservation Act 1999; and

(j)       any other related matters.

As can be seen, a number of the Terms of Reference refer specifically to matters directly relevant to the destruction of Juukan Gorge. However, others, particularly those identified at (a) and(f) – (j) go to matters directly pertinent to the more general issue of the possibility of legislative reform.

The referring of the Inquiry to the JSCNA was not subject to any substantive debate in the Senate. However, inthe adjournment debate in the Senate that evening, Australian Greens Senator Rachel Siewert made a contribution 9that perhaps caught the mood of the day:

I rise tonight to speak on the irreplaceable loss of Juukan Gorge rock shelters in the Pilbara of Western Australia. These were wilfully destroyed. On Sunday 24 May, at the beginning of reconciliation week, Rio Tinto blasted the Juukan Gorge rock shelters to smithereens. The rock shelters showed 46,000 years worth of continual occupation and provided a 4,000-year old genetic link to today's traditional owners. The Puutu Kunti Kurrama and Pinikurra peoples, the traditional owners of this land that was blasted, did not want this heritage destroyed, but now it is gone.
People around the world rightly condemned the destruction of ancient statues and sites by the Taliban and ISIS. What was blasted in the Pilbara in Western Australia is irreplaceable—46,000 years—and is rightly being condemned around the world. Rio Tinto knew the cultural significance of the site to the traditional owners. They even helped to make a documentary about it. They can't deny that this was wilful destruction of a heritage site. It is morally and ethically wrong. They did not have a social licence to do that.

The date for the Committee to report back to the Senate was set at 30 September 2020 but was later extended until 18 October 2021. In December 2020 the Committee issued an interim report entitled Never Again.10 The Final Report, A Way Forward, was released in October 2021.11

The Inquiry involved the JSCNA in extensive consultation with a range of interested parties both in Western Australia and nationally. In addition to many submissions from First Nations organisations, the JSCNA received submissions from State Governments and statutory authorities, academics, investor peak bodies, professional associations, and key resources companies and their peak bodies. The Inquiry explored many of these submissions in greater detail during public hearings. The proceedings of the Inquiry then, as contained in the various documents arising from it – the submissions, exhibits, transcripts and reports– provide a wealth of relevant data. Over the course of the Inquiry the JSCNA received175 submissions, 64 supplementary submissions, and 41 exhibits, and held 23 public hearings.12

The intent of this Part 2 of this article is to review the JSCNA Reports and the materials that were presented to the Inquiry to identify, in particular, the relevance of current international legal norms to the Recommendations and associated analysis produced by the Inquiry. The intent is also to examine the submissions, exhibits and transcript of evidence to the Inquiry to identify the relevance of these international legal norms to the various organisations and individuals that took part in the proceedings of the Inquiry.

Part 2 will proceed in three parts following this background. Part 2.2 will examine the references to international legal norms contained in the Interim and Final Reports. The second, and more substantive, part (Part 2.3) will examine the written submissions (and exhibits) made to the Inquiry and the transcripts of some of the oral evidence received by the Inquiry in its public hearings. There follows in Part 2.4 an attempt to draw together the key themes that emerged in the proceedings of the Inquiry examined by stakeholder “sector” and to identify how these themes were reflected in the Inquiry Reports.

The final part, Part 2.5, considers the content of the Government Response document. The particular focus of this consideration is, again, the extent to which reference is made in the Government’s Response to expectations (and obligations) under international law.

2.2       The Reports

2.2.1        The Interim Report – Never Again

The JSCNA Interim Report, Never Again, deals substantially with the sequence of events and surrounding issues leading to what is described as “the Juukan Gorge fiasco”.13Significant consideration is given in this regard to the role of agreements under the NTA and the operation of the Aboriginal Heritage Act. Relevant to the issue of broader national ICH legislative reform, the Interim Report states14 as follows:

It is clear that Commonwealth protections are essential in safeguarding First Nations heritage, especially where states and territory governments have a financial interest in facilitating mining and other developments on their land. The Committee is aware of significant concerns about failures to adequately protect First Nations heritage in almost all states and territories.
It is the strong view of the Committee that the Commonwealth should play a far more significant role in ensuring and enforcing a standard of heritage protection across the states and territories that is consistent with Australia’s international obligations.

The Interim Report refers to international law and standards15 in the following terms:

International law potentially [plays] a significant role in Indigenous heritage protection. Australia is a signatory to a number of conventions which seek to protect and preserve Indigenous heritage and is a supporter of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which encapsulates comprehensive standards for the human rights of Indigenous People and articulates principles of international law. As the inquiry progresses, the Committee will seek to look more closely at this issue as a means of benchmarking standards of heritage management in Australian law.

The Interim Reportstates16 that both the ATSIHPA and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act):

… will require substantial revision to make them effective and bring them in line with community expectations and international obligations. The substantive questions raised to date are whether:
·    primacy should continue to be given to State legislation
·    the issue of Indigenous heritage protection at the Federal level should be entirely subsumed within the EPBC Act
·    there should be more effective stand-alone Indigenous heritage protection legislation at the federal level—incorporating national standards and expectations with which to benchmark and back-up State and Territory legislation.
The Committee will examine this more closely in its final report.

The Interim Report includes recommendations17 as follows:

The Committee recommends to the Australian Government that ministerial responsibility for the administration of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 revert to the Minister for Indigenous Australians, and that the National Indigenous Australians Agency become the administering authority. …
The Committee recommends that the Australian Government urgently review the adequacy of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Beyond this the Interim Report, with its focus on the factual circumstances of the Juukan desecration itself, makes little reference to international law and legislative reform.

2.2.2  The Final Report – A Way Forward

The Final Report made two key recommendations. The first, relevant to this current investigation, was to the effect that the Commonwealth should pass new ICH laws that “should set out the minimum standards for state and territory heritage protections consistent with relevant international law (including the United Nations Declaration on the Rights of Indigenous People (UNDRIP)) and the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage inAustralia”.18

The second19 was that Australia should ratify the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage 2003 (the UNESCO Convention).

The Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia20 (Dhawura Ngilan) was launched in August 2020 by the Heritage Chairs and Officials of Australia and New Zealand. It includes four vision themes to facilitate the broader celebration of ICH in Australia. The first of these visions seeks improvement in Australian ICH laws against the Best Practice Standards in Australian Indigenous Cultural Heritage Legislation and Management 21 (the Standards):

As a foundational principle, Australia’s Indigenous Peoples are entitled to expect that Indigenous Cultural Heritage legislation will uphold the international legal norms contained in the UNDRIP.22

Clearly, Dhawura Ngilan, referenced in the Final Report, is also strongly informed by the UNDRIP. The Dhawura Ngilan document that includes the Standards is examined in greater detail below.

The Final Report reviews a range of international instruments relevant to ICH that support these two key recommendations. The other instruments so identified23are:

·    Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)6.94
·    Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) 6.95
·    Australia ICOMOS Charter for Places of Cultural Significance (1979) 6.96-6.97
·    International Convention on the Elimination of all Forms of Racial Discrimination (1966) 6.101
·    International Covenant on Economic, Social and Cultural Rights(1966) 6.101
·    Indigenous and Tribal Peoples Convention (1989) (ILO Convention 169) 6.101

The Final Report includes a general comment on the relevance of international instruments24:

Australia is signatory to a range of international conventions and declarations. These declarations should guide national law and policymaking with respect to the rights of Aboriginal and Torres Strait Islander peoples.

The Final Report gives more detailed consideration to the relevance of UNDRIP25. Here the JSCNA identifies the ICH relevant provisions of UNDRIP. The Report notes that UNDRIP is not yet formally incorporated into Australian domestic law, and quotes the submission of the Law Council of Australia(LCA) to the Inquiry:

… insofar as the UNDRIP relies on and elaborates well established human rights in international treaty and customary law, it is binding on Australia.… The UNDRIP is not a treaty and therefore it does not itself create legally binding obligations. However, many, if not all, of its provisions have been recognised as reflecting customary international law. Its articles also echo many of the rights articulated in legally binding human rights treaties, but with a specific focus on Indigenous peoples.26

 

2.2.2.1      Content of Free, Prior and Informed Consent

The principle of Free, Prior and Informed Consent (FPIC) is dealt with in the Final Report at some length. This consideration starts with the following observation:

Free, Prior and Informed Consent(FPIC) is a core principle of UNDRIP. Stakeholders throughout this inquiry have pointed to it as a crucial principle that must be enshrined within Australian Aboriginal cultural heritage legislation and related practices.27

The Final Report notes the acceptance of the significance of UNDRIP, including FPIC, particularly by the minerals industry, in reproducing the following section of the oral submissions of the Minerals Council of Australia (MCA) Chie Executive Officer, Ms Tania Constable:

The minerals industry recognises the United Nations Declaration on the Rights of Indigenous Peoples as a practical framework to inform engagement, decision-making and partnerships. The Australian minerals industry understands FPIC as genuine and good-faith engagement aiming to achieve consent in the form of a land use agreement that sets out how the participants will work together to maintain the consent over the life of a project.28

Notable is both the MCA recognition of the significance of UNDRIP but also the equivocation regarding its effect and the very particular interpretation of the principle of FPIC.

This equivocation is given some operational context in the oral submissions from academics working in the field who have noted the challenge posed to the resources sector in putting UNDRIP and FPIC into effect. The Final Report includes the following quote from the oral testimony of the Director of the Centre for Social Responsibility in Mining (CSRM) at the University of Queensland:

We also hear that FPIC is—you used the word 'bastardised'—kind of being picked apart a little bit. So it is free, prior and informed, but there is not the consent piece. We do hear that. We hear that FPIC is consultation. So we do agree with you that it is a term that's open to interpretation. But processes of consultation and consent are very important, and we need to have amore open discussion about what it means and what it looks like.29

In response, citing the UN Food and Agriculture Organisation, the Final Report adopts an interpretation of FPIC as a collective right of Indigenous Peoples that “allows them to give or withhold consent to any project that may affect them or their lands. Once given, consent may be withdrawn at any stage” 30.

In putting forward these views, the Final Report would appear to adopt an interpretation of FPIC that Ananya and Puig31 describe as a “consent-or-veto power approach”. In this important article, Anaya and Puig actually draw distinctions between four approaches to FPIC. Two of these approaches see consultation as merely a procedural requirement. These are described as a “minimalist” and an “instrumentalist” approach. The approach to FPIC of the MCA as outlined by Ms Constable and quoted above which sees “FPIC as genuine and good-faith engagement aiming to achieve consent”32 is perhaps reflective of this.

A diametrically opposed approach (“consent or veto") sees FPIC as creating an absolute veto which may be exercised by Indigenous Peoples. This appears to be the approach favoured in the Final Report. The fourth, “human rights pluralist” approach sees the FPIC rights of Indigenous Peoples as balanced by the broader social interest – a balance which must be achieved by the State in much the same way as other competing human rights must be balanced, and any infringement of rights justified.

The following passages elaborate the distinction between these last two approaches. Ananya and Puig describe the veto or consent approach as follows:

A freestanding ‘right to consent’ as part of the consultative norm. Accordingly, protecting a choice of giving or withholding consent – not specifically safeguarding human rights. …
This position affirms a slice of sovereignty for indigenous peoples at the expense of the state and implies an absolute right to block a proposed measure that may otherwise be backed by ordinary majoritarian democratic decision making. …
Notwithstanding its deep concern for the advancement of the rights of indigenous people, the consent or veto approach tends to reduce the key outcomes of the process to obtaining or withholding consent, instead of safeguarding human rights. …
… it eliminates the governments’ policy space to make important decisions without indigenous peoples’ consent – something that is difficult to reconcile with the basic idea of state sovereign decision making and prevailing understandings of pluralisticdemocracy.33

The human rights pluralist approach, favoured by Anaya and Puig, is described in the following passage:

In keeping with the safeguard role of the duty to consult, consent by indigenous peoples is required whenever their substantive rights of land and resources…or other internationally recognised rights will be materially and substantially affected by a measure promoted by the state. It follows that if the measure is ultimately designed or revised to avoid any substantial effect on indigenous peoples’ rights, consent or agreement is not required. By the same token, consent or agreement can only be required for those aspects of a project that materially affect indigenous peoples’ rights and not necessarily for the entire project. …
In all cases in which the state determines that consent is not required, the state has the burden of demonstrating either that no rights are being limited or affected or if they are that the limitation is permissible under international law.34

As suggested above, it would seem that, between these alternative approaches to the application of FPIC, the Final Report clearly adopts the more absolute “consent or veto” approach to FPIC rather than the “human rights pluralist” approach favoured by Anaya and Puig or the “procedural” approach that seems to be reflected in the MCA comments.

As will no doubt be appreciated, the nuance of distinction between these four approaches is a matter of great substance when it comes to articulating the content of any future legislative reform.

Clearly, the Final Report provides a valuable insight into perceptions of the impact of international law norms on the development of ICH legislation, particularly when it comes to the crucial issue of the interpretation of FPIC. In addition to generating the Final Report, however, as noted above, the JSCNA inquiry process prompted a great number of submissions from a range of sections of society. Analysis of these submissions provides evidence of their perceptions of the impact of international law norms. The following part of the article provides the results of analysis of these submissions from sectors considered to have the greatest potential to impact future ICH legislative reform.

2.3        The Submissions

This section examines the written submissions (and exhibits)made to the Inquiry and the aspects of transcripts of the oral evidence received by the Inquiry in its public hearings. As stated earlier, 175submissions (not including supplementary submissions) were received by the Inquiry. For the purposes of the current investigation, 50 of these were the subject of analysis. The following table describes the submissions by sector and identifies the number of those submissions that were the subject of analysis as part of this examination.

 

Sectors                                                     Number     Analysed

Academic                                         20                5

Civil                                                     8                2

Civil–Professional                             14                2

Government                                      10              10

Indigenous–Statutory Authority        4               4

Indigenous                                        29              10

Indigenous–International                   4                1

Individual                                          64                1

Industry                                               2               2

Legal                                                    9               3

Mining                                                 11              11

TOTAL                                                        175               50

Civil–Professional includes historical and archaeological professional associations;

Indigenous refers to Aboriginal and Torres Strait Islander organisations;

Industry refers to non-mining commercial organisations (both submissions were from industry superannuation organisations); and,

Mining includes minerals industry groups and firms providing services to mining companies.

The 50 submissions analysed were selected on their perceived relevance to the national ICH legislative reform process contemplated in the Committee’s Terms of Reference.35

On this basis, all submissions from government agencies and Indigenous statutory authorities were reviewed. Indigenous organisation submissions reviewed were primarily those from national and State peak bodies and native title representative bodies (the only individual submission reviewed was one referred to in an Indigenous national peak body submission). The submission from the PKKP people was also analysed.36Academic, legal, and civil–professional submissions were selected based on perceived influence on national ICH legislative reform processes.

The outcomes of this review will be presented sector by sector followed by some more thematic general commentary.

2.3.1  Sectoral Analysis

As identified in the table above, analysis of the submissions was undertaken first by allocation into sectors, eleven of which were identified. What follows is an analysis of nine of these sectors. Only one individual submission was analysed which is clearly insufficient to attempt to derive trends. The “Indigenous International” all brought the JSCNA’s attention to their negative experience with the Rio Tinto corporation but interestingly did not refer to international legal norms in this regard.

2.3.1.1       Mining

Eleven mining submissions were received. Of these, four responded to issues associated with particular local projects that had arisen during the course of the Inquiry and did not address any issues relevant to broader ICH legislative reform. The other, “relevant” mining submissions were received from:

- Rio Tinto37

- Association of Mining and Exploration Companies38

- Woodside Energy Ltd39

- The Chamber of Minerals and Energy of WesternAustralia40

- Fortescue Metals Group41

- BHP42

- Minerals Council of Australia.43

In addition, Glencore provided oral testimony to the Inquiry on 6 July 2021regarding the MacArthur River Mine in the Northern Territory but did not (apparently) make a written submission. With some caveat in the case of BHP (noted below) all the mining submissions supported the WA Government proposed reform of the Aboriginal Heritage Act but did not support further alteration to the existing ICH legislative framework. None of the three peak industry body submissions indicated support for national ICH legislative reform in their written submissions.

None of the mining submissions referred to international legal standards in their primary submission. Rio Tinto, in a supplementary submission, did provide a copy of the (global) Rio Tinto agreement- making guide: Why Agreements Matter44 which does refer to the principle of FPIC contained within UNDRIP and also to the International Finance Corporation’s Operating Procedures. No commentary on the relevance of these to the legislative framework was provided. A supplementary submission from BHP did refer to the First Nations Heritage Protection Alliance’s Draft Principles on Cultural Heritage45and indicated support of these.

Interestingly, although most (four) of the seven relevant mining submissions were made by organisations that (directly or indirectly) are members of the International Council on Mining and Metals (ICMM), none of the submitting organisations made reference to their necessary commitment to the contents of the ICMM May 2013 Position Statement, Indigenous Peoples and Mining.46 The Position Statement acknowledges the status of UNDRIP and commits member organisations to implementing FPIC in respect of projects commenced or significantly modified after the adoption of the Position Statement in May 2013. The Position Statement contains an “expectation” that it will be implemented by May 2015.47

The process of oral testimony to the Inquiry did allow Committee members the opportunity to explore some of the issues around FPIC more directly with witnesses representing corporations and peak bodies. As noted earlier,48Ms Tania Constable CEO of the MCA did refer to UNDRIP and the MCA interpretation of the principle of FPIC. In similar fashion, in the oral testimony of the representatives of Glencore there is acknowledgement of the principle of FPIC (adopting an MCA interpretation)as well as reference to the ICMM position statement.49

2.3.1.2       Government

Of the ten Government submissions, only one (Victoria)50 made recommendation for significant national ICH legislative reform, putting forward the most comprehensive national reform proposal. In essence this was for a State legislation accreditation process administered by a National Aboriginal Heritage Council comprised of representatives of Traditional Owner groups from all States and Territories. The Council was suggested to have the function of accrediting State regimes and exercising the Minister’s powers for making declarations under ATSIHPA. The Victorian submission also suggested better arrangements for the national management of Aboriginal ancestral remains as well as movable and intangible ICH.

The Northern Territory (NT) Government foreshadowed51 some possible amendments to the Heritage Act 2011 (NT) and did recommend significant review of ATSIHPA in light of the Dhawura Ngilan Standards. There is some suggestion the Dhawura Ngilan Standards may inform future local legislative reform. The NT Government submission also referred to the separate submission from the Aboriginal Areas Protection Authority (AAPA).

The Queensland submission52 clearly contemplated continuation of existing structures but also suggested the Dhawura Ngilan Standards may inform any future local legislative reform.

The only other State Government agency submission (Western Australia – Registrar of Aboriginal Sites)53 recites existing process and makes no substantive submission. While the WA Government itself did not make a written submission, the Interim Report notes that the relevant Western Australian Minister, the Hon Ben Wyatt MLA, stated in evidence:

So one thing that I think the Commonwealth can do, rather than create a separate heritage regime, is actually invest in the architecture that's been created under the Native Title Act. I see that as the real opportunity now. If we're wanting to elevate agreement making, if we're wanting to elevate the voice of Aboriginal people at this table, the Commonwealth has an easy way to do it—it's to provide more support to PBCs [Prescribed Bodies Corporate].54

Mr Wyatt is later reported to have added in evidence:

My view is that Aboriginal heritage regimes should be legislated and implemented by state and territory government.55

Three Commonwealth agencies that made submissions also largely restricted these to reciting existing process. The National Native Title Tribunal (NNTT) submission56 described the interaction of s 237 of the NTA with s 18 of the Aboriginal Heritage Act. The National Indigenous Australians Agency (NIAA) submission57merely described the process followed in the event an ATSIHPA declaration inquiry is received. The Commonwealth Department of Agriculture, Water and Environment submission58 provides statistics regarding applications made under ATSIHPA.

The Australian Heritage Council submission59 notes and supports the development of the Dhawura Ngilan Standards and refers to the obligations under the UNESCO Convention. It does suggest a greater role for the EPBC Act in ICH and notes uncertainty in the relationship between a National Heritage List declaration and native title rights.

2.3.1.3      Indigenous––Statutory Authority

Four submissions were assigned this classification: The Northern Territory AAPA60, the Victorian Aboriginal Heritage Council (VAHC)61, the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)62 and the Torres Shire Council (TSC)63.Of course, organisations such as the Central Land Council and NSW Aboriginal Land Council are also Indigenous statutory authorities, but it was considered more appropriate to include these with other land rights focused Indigenous organisations. The TSC is strictly not an Indigenous statutory authority, but it was considered inappropriate to merely assign TSC as “Government”. The focus of the TSC submission was on its role as a proponent and public land manager. The submission provided an overview of relevant state legislative requirements and native title considerations and identified as a key issue the ascertainment of with whom to consult for ICH purposes and for the purposes of satisfaction of the(particularly intangible) Indigenous cultural rights aspects of Queensland’s human rights legislation.

The three remaining Indigenous statutory authorities all have direct legislative responsibilities with respect to aspects of ICH and their submissions warrant particular attention. The AIATSIS submission notes the tension between protection of ICH and development and notes that the application of the principle of FPIC in relevant legislation would lead to “shared decision making” and be consistent with international standards such as the Burra Charter and the UNESCO Convention. It does not refer to UNDRIP or the Dhawura Ngilan Standards. The submission also notes gaps in the existing legislative arrangements but does not propose any model to remedy this.

By contrast both the AAPA and VAHC submissions put forward quite specific proposals. The AAPA submission refers significantly to international legal standards: specifically, UNDRIP in relation to FPIC, articles 5 and 27 of the ICCPR, articles 6(2), 13(1) and 14(1) of the International Labour Organisation's Convention 169 and the Convention on Biological Diversity (CBD). Relevant to this investigation are two recommendations which are in similar terms to the Final Report. The submission recommends:

1.  That strong national legislation for the protection of all Aboriginal and Torres Strait Islander heritage is adopted, and that such legislation sets minimum standards for state based heritage frameworks, and provides a national last point of appeal.

2.  That the views of Aboriginal and Torres Strait Islander people be central in the determination of matters concerning Aboriginal cultural heritage and sacred sites, and that such views and consent be sought by means of free, prior and informed consent (FPIC).

The VAHC submission also refers to the international instruments identified in the AAPA submission in suggesting these have become an impetus for ICH reform. The submission recommends a legislative structure based on accreditation (or not) of State regimes assessed against the Dhawura Ngilan Standards. The submission makes the following additional comment:

In addition to the development of these international instruments, is the acceptance of the standards arising from them by the international corporate community64, in particular by international resource companies65 that often, through their operations, have a significant interaction with ICH issues.66

Quite apparently, therefore, the significance of international legal norms is well recognised in these Indigenous statutory authorities.

2.3.1.4      Indigenous Organisations

There were two features significant about Indigenous organisation submissions. The first was frequent references to international legal instruments, particularly UNDRIP but also the Convention for the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights (ICCPR). There were also frequent references to Australia’s public commitments to the implementation of UNDRIP both through endorsement of the Declaration in 2009 and more recently in the Australian submission to the UN Expert Mechanism on Indigenous Peoples study of FPIC. The other feature was the emphasis given to the inter-connection between ICH protection and native title rights and agreements. Submissions identified the rectifying of the unequal bargaining position between First Nations Peoples and proponent sin the context of Indigenous Land Use Agreements as major impediments to ensuring ICH protections and giving genuine effect to the FPIC principle.

Most submissions that put forward models were supporting an accreditation model based on the Dhawura Ngilan Standards as the basis of accreditation. A significant number of Indigenous organisations supported, either explicitly or in effect, the model put forward by the National Native Title Council (NNTC) 67 with its explicit adoption of UNDRIP both directly and through reference to the Dhawura Ngilan standards.68 The importance of international legal norms was emphasised by NNTC CEO, Mr Jamie Lowe, in his oral evidence also:

We do draw heavily on international best practice for the standards as well, which is critical. Australia is a signatory to the Declaration on the Rights of Indigenous Peoples. We need to enact those rights within Australia.69

The NNTC in turn supported the submission of the VAHC. There was some nuance on this support. The Central Land Council saw a continuing role for a “last resort” appeal to the Commonwealth Minister.70 The Yamitji Marlpa Aboriginal Corporation (YMAC)71sought comprehensive reform of Commonwealth legislation but, it appeared, contemplated an ongoing role for State legislation on the basis of accreditation against the Standards.

This view was also articulated in the Kimberley Land Council (KLC) submission72 and reiterated by the then KLC CEO, Mr Nolan Hunter, when he said in oral evidence:

I think the Commonwealth should have some functional responsibility around minimum standards or benchmarking. That's been the conversation. I think that at a bare minimum the observation of the UN rights should be recognised as a basic human standard. It's those things, and I came up with a lexicon at an earlier point about this recognition and a concern around a living culture and people. At the very least, I think that the Commonwealth should be able to set this benchmark or have some consistency about what compels the standard or behaviour—setting the bar. It's about setting the expectations and how states' heritage acts should at least fall under some kind of measure.73

Other models were suggested. The Cape York Land Council(CYLC) contemplated a different model where administration of the regime would take place through a “new, independent, statutorily based, Indigenous cultural heritage regulatory authority established with national responsibility to facilitate and determine, including by arbitration if necessary, approval or not of Cultural Heritage Management Plan[s] (CHMPs).” 74 In subsequent oral evidence to the inquiry, the Acting CEO of the CYLC makes clear that the veto approach to FPIC is, in the CYLC view, the correct interpretation of the requirements of UNDRIP and the basis of the CYLC proposed model.75 The NSW Aboriginal Land Council – notable because, under the NSW Aboriginal Land Rights Act 1983, land rights structures are based on Aboriginal residence not traditional ownership – advocated for reform of ATSIHPA and the EPBC Act based on principles derived from UNDRIP. 76 The submission did not advocate a specific model but appeared to contemplate a State accreditation model.

The National Aboriginal Community Controlled Health Organisations (NACCHO)submission77 noted the need for reform and the relevance of international legal principles but focused its attention on the establishment of a process of partnership with First Nations people aimed at identifying the content of a reformed model.

2.3.1.5      Legal, Civil, Industry(non-mining), and Civil-Professional Groups

There are several politically significant groups in this sector. These include the LCA 78, Australia ICOMOS (International Committee on Monuments and Statues)79,the Human Rights Law Centre80 and GetUp!81.

The LCA submission, which was referred to in the Final Report and referenced above, suggested a “national First Nations cultural heritage framework should be pursued, in consultation with First Nations communities, that secures high-level national principles against which existing laws across Commonwealth, state and territory jurisdictions should be benchmarked, and reformed.” The submission itself includes extensive and comprehensive reference to international instruments, the Dhawura Ngilan Standards and case law particularly that relevant to ATSIHPA. It also explores the relevance of native title rights with respect to cultural heritage matters.

The model proposed by the LCA was perhaps most succinctly put by one of the country’s leading legal practitioners and LCA Indigenous Legal Issues Co-Chair, Mr Tony McAvoy SC, when he stated:

The notion is that the Commonwealth could adopt a set of principles and a benchmark which the states could then meet in terms of cultural heritage protection. One of those would be that, at a decision-making level, the primary decision-makers with respect to both significance and protection should be the traditional owners and the owners of that heritage. The second is that if decisions are made to protect heritage then that's a decision which should be considered by a court if it is to be overturned. Those protections then will allow what really has been looked after under the Federal Court— in respect of native title, anyway— as rights to be dealt with in an appropriate manner judicially. The rest of the principles go to ensuring that there's respect, openness and transparency around the way in which decision-making and protections are reported to the Aboriginal owners of that cultural heritage.82

The LCA position was largely shared by the Queensland Law Society submission which also made extensive reference to international instruments (particularly UNDRIP) and the Dhawura Ngilan Standards. The submission recommended a comprehensive review of existing legislation(Commonwealth, State and Territory) so as to develop an integrated model that conformed to relevant international standards. The Human Rights Law Centre also made extensive reference to international instruments and specifically endorsed the submission of the NNTC.

The ICOMOS submission made extensive reference to UNDRIP and made two key points:

Neither the Commonwealth nor the States and Territories should have the ability to override a decision of a Traditional Owner group who has made an informed decision in accordance with strong State or Territory Indigenous heritage legislation.”
“[R]ights of Indigenous peoples to control and make decisions about their cultural heritage afforded by [UNDRIP] and other instruments should be given full effect through legislation in order to be more effective”.83

The approach of the Australian Archaeological Association (AAA) 84 was somewhat different. The AAA supported legislative reform to ensure compliance with international standards (UNDRIP) but thought this should occur through a “national model law” approach similar to that used for occupational health and safety matters.

Finally, GetUp! submitted that there was a need for a comprehensive review of existing legislation to ensure conformity with international standards (UNDRIP). There was specific endorsement of the (State accreditation) model recommended in the Hon Elizabeth Evatt AC’s 1996Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

The third grouping considered under this heading is the (non-mining) industrial. These are bodies such as the superannuation fund HESTA85, the Australian Council of Superannuation Investors and the Australasian Centre for Corporate Responsibility.86 None of these submissions made specific recommendations for legislative reform. All three submissions identified the deficiency of existing legislation against international standards (in particular, UNDRIP and the UN Guiding Principles on Business and Human Rights87) and the need to improve this situation. However, the focus was upon the need for mining corporations to go beyond minimum legislative requirements.

2.3.1.6      Academics

Only three academics have been reviewed: Professor Marcia Langton88, Professor Samantha Hepburn89 and Associate Professor Kate Galloway.90

Professor Langton submitted that there are extensive international expectations arising from policy statements and international instruments that the Australian community expects mining companies to adhere to. The submission focuses extensively on the sources of these expectations. It goes on to endorse the NNTC submission as a model to give effect to this.

Professor Hepburn’s submission provided a detailed analysis of the shortcomings of existing Commonwealth and WA legislation against existing international standards and did not focus on a particular model of legislative reform.

Associate Professor Galloway’s submission focuses on the shortcomings of the native title regime in supporting protection for ICH and the need to make clear that damage to ICH can give rise to monetary damages.

2.4        Thematic Analysis

The review of the submissions in Part 2.3 above highlighted a number of particular themes that are worthy of restatement. These are: the significant “do nothing” sentiment, particularly from the mining industry itself; the role of native title agreements; the preponderance of support for a model that was based upon (some form of) a Commonwealth accreditation of State/Territory legislation on the basis of satisfaction of standards; and, the very sectoral-based reference to international instruments.

2.4.1          Significant “Do Nothing” Sentiment

This theme was particularly prevalent in the mining industry submissions but also predominant in a number of State Government submissions (notably WA). The essence of submissions that displayed this theme was that there was a need for reform of the WA Aboriginal Heritage Act but usually only as contemplated in the WA Bill that was under consideration at that time. Of course, this has subsequently been enacted as the Aboriginal Cultural Heritage Act 2021 (WA). Beyond that though, this theme advocated no overall change to the current national approach of each jurisdiction determining its own ICH legislative arrangements with the role of the Commonwealth being restricted to maintenance of ATSIHPA in its current “last resort” form. As such, the “do nothing” sentiment implicitly operates to attempt to lessen the impact of international legal norms by passing responsibility for legislative reform to the sub-national State Governments that do not (directly) bear the Commonwealth’s international legal obligations.

2.4.2             Native Title Agreements

The essence of this theme was to highlight the impact of the unequal bargaining position of Traditional Owners and proponents (usually the resources sector) on the outcomes of land access agreements and, in particular, how this unequal bargaining position impacted on the ability of Traditional Owners to utilise these agreements to protect ICH. There were several features identified in this regard:

- the short time frame for negotiations;

- the ability for a proponent to refer a proposal to the NNTT and the inevitably positive outcome of this referral for the proponent, particularly in combination with the absence of the ability for the NNTT to determine royalty equivalent payment conditions; and,

- the absence of even the “right to negotiate” provisions in relation to many non-mining proposals.

These factors were seen to undermine Traditional Owners’ ability to genuinely give, or withhold, consent to a proposal. It was also noted that an agreement once made often restricted the ability to adapt to changes of circumstances that may arise over the many years of the life of an agreement.

These views were particularly prevalent in submissions from Indigenous organisations, academics, professional civil society groups (for example archaeological groups) and civil society groups more generally. To the extent that the references to FPIC in this regard are necessarily references to the international legal norms contained in UNDRIP, this theme certainly reflects that impact.

2.4.3  “State Accreditation Model”

By contrast with the “Do Nothing” approach, the most common proposal for reform was the introduction of a system of Commonwealth accreditation of State and Territory ICH legislation for this legislation to be effective to authorise harm to ICH(“State Accreditation Model”). Within this basic proposal there were several variables to be resolved:

- Whether the Commonwealth provisions should be incorporated in an amended (and renamed) EPBC Act or part of new Commonwealth legislation that repeals and replaces ATSIHPA.

- Whether the Commonwealth should retain a “last resort” override – presumably in the situation that a proposal is approved under State legislation but opposed by Traditional Owners(note that several submissions opposed the idea that State legislation that permitted authorisation of a proposal despite the opposition of Traditional Owners could be accredited).

- The nature of the body that operated to accredit a State or Territory regime. A number of submissions suggested this should be a national body of Traditional Owners.

-  The regime that applied in the event that a State or Territory regime was not accredited.

- The interaction of native title agreements and State or Territory regimes.

- The standards against which State or Territory regimes were accredited. There was significant support for the Dhawura Ngilan Standards for this purpose.

- The method of identification of the relevant Traditional Owner group for the purpose of decision - making.

- Whether (non-place based) Intangible heritage regimes should be not be included in State or Territory regimes but the subject of an exclusively Commonwealth structure.

A further variation was the suggestion that came from the Australian Archaeological Association which supported a “national model law” approach rather than an “accreditation” approach. Finally, it should also be noted that there were some (Indigenous) organisations (notably Cape York Land Council) that suggested that a standards-based approach should apply, but in the context of Commonwealth legislation that “covered the field” to the exclusion of State legislation.

Again, to the(frequent) extent the advocates of state accreditations were proposing accreditation against either UNDRIP directly or the (UNDRIP derivative) Dhawura Ngilan Standards, these themes also reflect the impact of international legal norms.

2.4.4  International Standards

One notable theme that emerged was the sectoral nature of the references to international instruments and standards. Indigenous organisations, legal organisations, academics and civil society groups made frequent reference to international instruments such as UNDRIP, Convention for the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights and the UN Guiding Principles on Business and Human Rights.

However, such references were generally absent in submissions from the mining industry and State Governments. Notably, Rio Tinto itself made no direct reference to any such instruments, referring only to the Rio Tinto document, Why Agreements Matter,91 in a supplementary submission. This omission suggests there is a considerable gap between the mining industry public statements in documents such as the ICMM Position Statement on Indigenous Peoples and Mining 92 and the views expressed when it comes to specific proposals for legislative reform. Of course, it also suggests that such international standards are relevant to the operations of the mining industry. This conclusion triangulates exactly with the comments of the CSRM Director reproduced in the Final Report and referenced in Part 2.2.2 above.

In this context views expressed by groups such as the superannuation investors are also relevant. It will be recalled that the essential element of these views was that corporate adherence to international standards will impact on investment decisions, irrespective of applicable domestic legislative arrangements. The reaction to the Juukan Gorge desecration would support the accuracy of these views.

2.5        Government Response

The Commonwealth Government response to the Inquiry reports was tabled in Parliament on 24 November 2022.

It will be recalled that the two recommendations of focus in this article were, in the Final Report, Recommendation2 (“The Committee recommends that the Australian Government ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003”) and Recommendation 3(to paraphrase – the Committee recommends that the Australian Government legislate a new framework for cultural heritage protection at the national level). In summary, the Commonwealth accepted seven of the eight recommendations of the Inquiry. The one recommendation not accepted (but under consideration) was whether the Minister for the Environment or the Minister for Indigenous Australians should have portfolio responsibility for ICH.

Recommendation 2 was accepted in principle. The Government Response suggested that the matter of implementation of the UNESCO Convention was currently under review. Reference was made93 to the Productivity Commission’s final report on the inquiry into Aboriginal and Torres Strait Islander Visual Arts and Crafts which at the time was forthcoming.

The Productivity Commission Report has since been released 94and, on 30 January 2023, the Minister for the Arts, the Hon Tony Burke MP, as part of the release of Australia’s Cultural Policy for the Next Five Years, announced the Government’s intention to introduce “stand-alone legislation to protect First Nations knowledge and cultural expressions”95as recommended in the Productivity Commission’s Report. At the time of writing, progress in actual ratification of the UNESCO Convention or the process of developing the new legislation is unclear.

The flavour of the response to Recommendation 3 can be gained from the following excerpt from the Government Response:

The Australian Government recognises that First Nations peoples have long been calling for urgent cultural heritage reforms, which is why we are committed to working in full and genuine partnership with First Nations peoples to reform cultural heritage protections through a standalone piece of cultural heritage legislation.
The Australian Government will do this within the framework of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), particularly the principle of self-determination, and consistent with our commitments to the National Agreement on Closing the Gap and the Uluru Statement from the Heart.96

The Government Response to the more detailed aspects of Recommendation 3 (discussed in Part2.2.2 above) going to the development of minimum standards, the significance of UNDRIP upon these and a number of procedural recommendations essentially relied upon the co -design process (also an aspect of Recommendation 3) which is discussed in Part 3 below.

Before moving to consideration of the co-design process, however, two aspects of the Government Response require particular mention. First is the clear commitment made within it to pass new stand- alone ICH legislation, repeated several times in the Response and evidenced in the passage reproduced above. The second aspect is the oft repeated reference (again as evidenced in the passage above) to UNDRIP and the principle of FPIC as informing the legislative design process.

It is appropriate, then, to now consider the legislative reformco-design process.

3       The Legislative Reform Co-Design Process

3.1        Background and Co-Design

As noted above in Part 1, Introduction, on 29 November 2021 then Commonwealth Environment Minister Ley entered into a Partnership Agreement 97with the First Nations Heritage Protection Alliance (FNHPA) to commence a co-design process the purpose of which was to “develop advice on options to implement changes for modernising Aboriginal and Torres Strait Islander cultural heritage protections.” 98 That Partnership Agreement was updated and extended by a further agreement, executed in November 2022, with the current Minister for the Environment, the Hon Tanya Plibersek MP.99

The original Partnership Agreement noted that the concept of modernising ICH protections encompasses more than legislative reform. 100However, at this stage, most of the work under the Partnership has focused on this aspect. Since the change of Government in May 2022, this focus on legislative reform has acquired a particular relevance as the new Government has, on a number of occasions, made an explicit commitment to passing new stand-alone Commonwealth Indigenous Cultural Heritage legislation in this current term ofparliament.101 The stated intent of the parties to the Partnership Agreement is to put forward to the Minister options for legislative reform by mid 2023.102Under the terms of the (original and current) Partnership Agreement, only proposals that are endorsed by the FNHPA can be presented to the Minister as coming from the co-design process.

The concept of “co-design” warrants some brief attention. The term developed currency under the previous Commonwealth Government in the process of the development of the “National Agreement on Closing the Gap (CtG Agreement)”103 which was agreed between all Australian Governments, the Australian Local Government Association and the Coalition of Peaks (a representative body of Aboriginal and Torres Strait Islander peak organisations).104That CtG Agreement emphasises the “unprecedented shift in the way governments work” with Aboriginal and Torres Strait Islander people to an approach of “shared decision-making on the design, implementation, monitoring and evaluation of policies and programs” that affect Aboriginal and Torres Strait Islanderpeople.105 At clause 30, the CtG Agreement commits to the establishment of Policy Partnership Agreements as part of the process of shared decision-making.106The 2021 cultural heritage reform Partnership Agreement makes reference to this aspect of the CtG Agreement.107 In addition to this foundation in the CtG Agreement, the application of the “co-design” principle to the legislative reform project is also included in the JSCNA Final Report recommendation 3 referred to earlier at Part 2.2.2.Reference to the need for “co-design” in the reform of Indigenous cultural heritage legislation is also included in the 2020 “Samuel Report”, Independent Review of the EPBC Act 108and in the 2021 State of EnvironmentReport.109 The emphasis onco-design has had the effect of elevating the Indigenous perspective in the development of legislative reform proposals.

3.2        Legislative Reform Consultation Process

This section of the article will briefly review the process adopted to the development of the legislative reform option by the parties to the Partnership Agreement. More significantly, it will examine the three proposals for legislative reform around which consultations are currently taking place. As with the previous section, within this examination will be a particular focus on the influence of international law norms within each of these options.

Under the 2021 Partnership Agreement, and continued in the 2022 Partnership Agreement, a Joint Working Group comprising equal representation from the Commonwealth and the FNHPA is responsible for the design and implementation of the co-design process. The Joint Working Group developed a two-stage process of consultation in the development of legislative reform options. The first stage of consultation involved a series of over thirty consultations with key First Nations and other stakeholders’ groups, particularly those that participated in the JSCNA Inquiry. The purpose of this first stage was to explore perceptions of the scope of, need for, and shape of potential reforms.

This first stage of consultation took place between March and July 2022. The process is described in a Directions Report.110The second stage of consultations was scheduled to run from October 2022 until March 2023, extended until July 2023.111The second stage consultations are based on an exploration of the three proposals contained in an Options Paper produced by the Joint Working Group.112

The explicit commitment from the Commonwealth Government to introduce Indigenous cultural heritage legislation in this term of the Commonwealth Parliament, combined with the Government’s commitment to the co-design of that legislative reform proposal, suggests that the proposals and associated consideration contained in the Options Paper warrant close attention by those impacted by the operation Indigenous cultural heritage legislation.

3.3        The Three Reform Options and Associated Considerations

With regard to a number of submissions that were made to the JSCNA Inquiry, two aspects of the Options Paper warrant particular note. The first is the very clear statement that:

Doing nothing is not a viable option. This is consistent with the Australian Government’s clear commitment to legislative reform for First Nations cultural heritage protection.113

Thus, the “do nothing” sentiment that was a feature of many of the resources industry submissions to the JSCNA Inquiry has clearly not found favour with the current Government. The question is: what will be the shape of the legislative reform that does occur? While the Options Paper identifies three potential approaches it also discusses how all of these must satisfy several basic principles. One of these is general conformity with UNDRIP. As the Options Paper states:

The principles outlined in UNDRIP are fundamental in developing options to reform First Nations cultural heritage protections. Key amongst these is that, as far as possible, First Nations peoples are empowered to make decisions about their own cultural heritage.114

In this respect it would appear the proposals under consideration have picked up the emphasis in the JSCNA Inquiry Final Report regarding the significance of contemporary international legal norms including FPIC. The Options Paper also identifies several other design principles such as fairness, certainty and consistency, clarity and transparency, and accountability.115

Within these parameters the three options for reform considered in the Options Paper are as follows:

1.  Overarching federal standalone legislation and repeal of [ATSIHPA].
2.  Federal accreditation of state and territory legislation where mandatory national standards are met, and repeal of[ATSIHPA].
3.  ‘Model’ legislation, and exemption from the operation of [ATSIHPA]once enacted.116

In relation to Option 1, the Options Paper notes that under this approach Commonwealth legislation would operate to the exclusion of any future role for the States or Territories. Under Option 2, in the event that State or Territory legislation was not “accredited” the default Commonwealth regime would apply in addition to the state or territory law (thus creating an incentive to ensure that state and territory legislation satisfied the UNDRIP derived Commonwealth standards). The Options Paper explains the Option 3 “model legislation” would be a model State or Territory law contained as a schedule to Commonwealth law. The model legislation would incorporate the UNDRIP principles. The example of national workplace health and safety legislation is suggested as an illustration of this approach.

At the time of writing the Stage 2 consultations are still underway and it is impossible to draw any broad summary of the responses received.

4              Conclusion

A number of conclusions can be drawn from the material covered in this article. The first is quite practical. This Commonwealth Government has made a number of explicit commitments to the introduction of new, stand-alone ICH legislation. Particularly in light of the content of the Government Response and the ongoing commitment to the co-design process with First Nations through the Partnership with the FNHPA, the inevitability of new Commonwealth legislation in this area would seem beyond doubt.

What is less certain is the structure to be adopted for such legislation. It is uncontroversial that the Commonwealth has the constitutional ability to pass comprehensive ICH legislation to the exclusion of the States and Territories (Option 1 identified in Part 3.3 above). There would, though, appear to be several practical and political impediments to doing so, not least the cost of establishing the necessary Commonwealth bureaucratic infrastructure and the presumed political resistance of at least the States and Territories. Likewise, the “light hand” of model legislation may be expected to be unacceptable to First Nations groups and thus be characterised as a failure of political will by the Commonwealth Government.

These factors suggest a legislative approach of the Commonwealth enacting some form of standards and putting place the necessary incentive or obligation to have the States and Territories adopt these is a likely outcome. It was one recommended in the Final Report. However, the content of those standards is at this stage uncertain.

The foregoing discussion quite clearly indicates that any such standards will at least be informed by relevant international standards and norms such as UNDRIP and include its principle of FPIC. To this extent this paper’s analysis does support its original thesis which was stated as being: “contemporary international legal norms and expectations, in particular as articulated in UNDRIP are developing a normative weight well in excess of their formal non-binding international legal status”. This would seem to be clear from both the Government Response and the Inquiry Reports. It is also clear from the analysis of the submissions to the Inquiry contained in this article.

What is surprising in this context is the absence of reference to these international legal norms in the written submissions of the resources sector to the Inquiry. To the extent the failure to address this issue in submissions was deliberate, it was an error. It is undermined by, and undermines, the public statements accepting the significance of these international legal norms contained in instruments such as UNDRIP. In turn this diminishes public confidence in a sector that is dependent upon that confidence.

Beyond this though, a further conclusion that can be drawn is that while instruments such as UNDRIP have acquired an international legal weight beyond its formal status, like all law its content and application are open to debate and interpretation. The controversy around the nuance of FPIC described in Part 2.2.2.1 is a clear example of this. In turn this suggests that the debate to come regarding the content of new Commonwealth ICH legislation will not be around whether that legislation should incorporate the principles contained in UNDRIP but how those principles are to be implemented in domestic law. To be an effective participant in that debate it will be necessary to frame contributions within those parameters.

 

 

 

1          It is notable that, since the Juukan Gorge desecration, none of these fund managers has in fact divested themselves of any Rio Tinto holdings and the share price has considerably increased.

2          Parliament of Australia, Joint Standing Committee on Northern Australia (JSCNA), Inquiry into the Destruction of 46,000 Year Old Caves at Juukan Gorge in the Pilbara Region of Western Australia.

3          First Nations Heritage Protection Alliance (FNHPA).

4          The history of the efforts in this regard is discussed in Graeme Neate, “Power, Policy, Politics and Persuasion – Protecting Aboriginal Heritage under Federal Laws” (1989) 6 Environmental and Planning Law Journal, 214, and Ronald T. Libby, Hawke’s Law: The Politics of Mining and Aboriginal Land Rights in Australia, UWA Press, 1989.

5          United NationsDeclaration of the Rights on Indigenous Peoples A/res/61/295 Ann. 1 (13 September 2007).

6          Megan Davis, “To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On”, (2012) 19 Australian International Law Journal 17.The paper also considers the desirability of striving for binding status for UNDRIP.

7          Australian Government, 2022, Australian Government’s Response to the Joint Standing Committee on Northern Australia’s: “A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge”; and “Never Again: Inquiry into the Destruction of 46,000Year Old Caves at the Juukan Gorge in the Pilbara Region of Western Australia” (Government Response).

8          Australian Parliament, Joint Select Committee on Northern Australia, Committee Resolution, Role of the Committee,1.

9          Senator R Siewert, Senate Hansard, 11 June 2020, 2883-2884.

10       Australian Parliament, Joint Standing Committee on Northern Australia, Interim Report, Never Again: Inquiry into the Destruction of Juukan Gorge (December 2020).

11       Australian Parliament, Joint Standing Committee on Northern Australia, Final Report, A Way Forward: Inquiry into the Destruction of Juukan Gorge (October2021).

12       Above n 11,[1.18].

13       Above n 10,[1.45].

14       Above n 10, [1.40]-[1.41].

15       Above n 10,[1.50].

16       Above n 10,[1.45].

17       Above n 10, [1.64], [1.66].

18       Above n 11, Recommendation 3, [7.79].

19       Above n 11, Recommendation 2, [7.30].

20       Heritage Chairs of Australia and New Zealand, Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia, Canberra,2020 (Dhawurra Ngilan).

21       Above n 20, Part 3, ©Victorian Aboriginal Heritage Council, “Best Practice Standards in Indigenous Cultural Heritage Management and Legislation”.

22       Above n 20, 32.

23       Above n 11, [6.94], [6.95],[6/96]-[6.97], [6.101].

24       Above n 11,[6.78].

25       Above n 11, [6.79]-[6.93].

26       Law Council of Australia, Submission 120 to the Inquiry, above n 2, cited in above n 11, [6.82].

27       Above n 11,[6.83].

28       Ms Tania Constable, Chief Executive Officer, Minerals Council of Australia, Committee Hansard, Canberra, 6 July 2021, 10, cited in above n 11, [6.88]

29       Professor Deanna Kemp, Director, Centre for Social Responsibility in Mining, Sustainable Minerals Institute, University of Queensland, Committee Hansard, Canberra, 18 June 2021, p. 46, cited in above n 11, [6.90].

30       Food and Agriculture Organization of the United Nations, Indigenous Peoples, adapted in above n 11 [6.84].

31       S James Anaya and Sergio Puig, ”Mitigating State Sovereignty: The Duty to Consult with Indigenous Peoples”,

(2017) 67 (4) University of Toronto Law Journal 435. James Ananya was appointed Special Rapporteur to the UN Permanent Forum on Indigenous Issues from 2008 to 2014.

32       Constable, in Final report above, n 19 [6.88].

33       Above n 31, 449-450.

34       Above n 31, 461.

35       Above n 2, Terms of Reference (f)-(i).

36       PKKP Aboriginal Corporation, Submission 129 to above n 2, 30 July 2020.

37       Rio Tinto Corporation, Submission 25 to above n 2, 31 July2020.

38       Association of Mining and Exploration Companies, Submission 66 to above n 2, 31 July 2020.

39       Woodside Energy Limited, Submission 79 to above n 2, 3 August 2020.

40       The Chamber of Minerals and Energy of Western Australia, Submission 83 to above n 2, August 2020.

41       Fortescue Metals Group, Submission 85 to above n 2, 7 August 2020.

42       BHP, Submission 86 to above n 2, 7 August2020.

43       Minerals Council of Australia, Submission 104 to above n 2, 19 August 2020.

44       Everingham, J, Kemp, D, Ali, S, Cornish, G, et al., Why Agreements Matter, Rio Tinto, March 2016.

45       BHP, Supplementary Submission 86.2 to above n 2, 26 March 2021.These were negotiated between the Indigenous coalition, the First Nations Heritage Protection Alliance, and BHP. The negotiations were instigated following a proposed shareholder resolution at BHP’s AGM.

46       International Council on Mining and Metals, Indigenous Peoples and Mining: Position Statement, May 2013.

47       See Matthew Storey, “‘FPIC,ICMM and CSR, Alphabet Soup or a Sea Change”(2014) 1(3) Energy and Resources Law Bulletin 55 for a more comprehensive analysis of the Position Statement; Matthew Storey “States’ Right to

Development versus Indigenous Peoples’ Rights”, in Gomez,R and Ramcharan, R (Eds) Business& Human Rights in Asia: Duty of State to Protect, 2021, Palgrave Macmillan.

48       Above n 28, in above n 11, [6.88].

49       Mr Steven Rooney, General Manager, McArthur River Mine, Glencore, and Ms Cass McCarthy, Corporate Affairs, Glencore, Committee Hansard, Canberra, 6 July 2021, 5-6.

50       Aboriginal Victoria, Submission 91 to above n 2, July 2020.

51       Northern Territory Government, Submission 61 to above n 2, undated.

52       Queensland Government, DSDSATSIP, Submission 170 to above n 2, undated.

53       WA Government, Registrar of Aboriginal Sites, Submission 152 to above n 2, 20 November2020.

54       Hon Ben Wyatt MLA, WA Minister for Aboriginal Affairs, Committee Hansard, 7 August 2020, 35, cited in above n 10, [1.80].

55       Above n 54, Committee Hansard, 42, cited in above n 10,[1.84].

56       National Native Title Tribunal, Submission 14 to above n 2, July 2020.

57       National Indigenous Australians Agency, Submission 116 to above n 2, 31 July 2020.

58       Australian Government, Department of Agriculture, Water & Environment, Submission 23 to above n 2, July 2020.

59       Australian Heritage Council, Submission 51 to above n 2, July 2020.

60       Aboriginal Areas Protection Authority, Submission 111 to above n 2, August 2020.

61       Victorian Aboriginal HeritageCouncil, Submission 29 to above n 2, 30 July 2020.

62       [Australian]Institute of Aboriginal and Torres Strait Islander Studies, Submission 57 to above n 2, 31 July 2020.

63       Torres Shire Council, Submission 169 to above n 2, 7 June 2021.

64       Above n 61, VAHC Submission 29, 7, footnote28. For example, see below n 86.

65       Above n 46, VAHC Submission 29, 7, footnote29.

66       Above n 61, 7 (footnotes to Submission 29, above 64, 65, are in the original submission).

67       National Native Title Council, Submission 34 to above n 2, 31 July 2020.

68       For example, Kimberley Land Council, Submission 101 to above n 2, 14 August2020.

69       Mr Jamie Lowe, CEO, Native Title Council, Committee Hansard, Canberra, 28 August 2020, p. 42.

70       Central Land Council, Submission 109, to above n 2, August 2020.

71       Yamitji Marlpa Aboriginal Corporation, Submission 114 to above n2, 28August 2020. YMAC is the Native Title Representative Body relevant for Pilbara area which includes Juukan Gorge.

72       Kimberley Land Council, Submission 101, to above n 2, 14 August 2020.

73       Mr Nolan Hunter, CEO, KLC, Committee Hansard, Canberra, 17 September 2020, 13.

74       Cape York Land Council, Submission 110 to above n 2, 21 August 2020.

75       Mr Terry Piper, Acting CEO and Mr Shannon Burns, Policy Officer, Cape York Land Council, Committee Hansard, Canberra,8 June 2021,3.

76       NSW Aboriginal Land Council, Submission 41 to above n 2, 31 July 2020.

77       National Aboriginal Community Controlled Health Organisations, Submission 77 to above n 2, 3 August 2020.

78       Law Council of Australia, Submission 120 to above n 2, 21 August2020.

79       Australia ICOMOS, Submission 98 to above n 2, August 2020.

80       Human Rights Law Centre, Submission 102 to above n 2, 14 August 2020.

81       GetUp!, Submission 128 to above n 2, 14 August 2020.

82       Mr Tony McAvoy SC, Co-Chair LCA Indigenous Legal Issues Committee, Committee Hansard, Canberra, 2 October2020,13.

83       Above n 79, 4.

84       Australian Archaeological Association, Submission 37 to above n 2, undated.

85       HESTA, Submission 35 to above n 2, July 2020.

86       Australasian Centre for Corporate Responsibility, Submission 56 to above n 2, 31 July 2020.

87       John Ruggie, Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Report: Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework, UN Doc A/HRC/17/31 (2011) 6.

88       Prof Marcia Langton, Submission 103 to above n 2, undated.

89       Prof Samantha Hepburn, Deakin Law School, Submission 54 to above n 2, 31 July 2020.

90       Assoc Prof Kate Galloway, Griffith Law School, Submission 27 to above n 2, 29 July 2020.

91       Above n 44.

92       Above n 46.

93       Above n 7, Government Response,7.

94       Productivity Commission, Aboriginal and Torres Strait Islander Visual Arts and Crafts, Study Report, Canberra, November2022.

95       Australian Government, Revive: a Place for Every Story, a Story for Every Place – Australia’s Cultural Policy for the Next Five Years, 9February 2023, 97

96       Above n 7, Government Response,5.

97       Australian Government, Agreement between the First Nations Heritage Protection Alliance and the Commonwealth of Australia to Establish a Co-design Partnership on Cultural Heritage Reform (Partnership Agreement). (The site also gives access to a number of the other documents referred to in this section.)

98       Cultural Heritage Partnership Agreement(29 November 2021), Pt 1, cl 4(i), 3.

99       Cultural Heritage Partnership Agreement(24 November 2022), Pt A, cl 2.

100    Above n 98, Pt 1, cl 8, 4, a sentiment repeated in above n 99, 2022 Agreement, Pt B, cl 5, 3.

101    For example,Hon Tanya Plibersek MP, Address to the NationalPress Club, 19 July 2022; above n 7, theGovernment Response (as noted in the previous section).

102    Above n 99, Pt B, cl 6(i), 4, specified as by 30 May 2023..

103    Department of Prime Minister and Cabinet, National Agreementon Closing the Gap, July 2020.

104    The Coalition of Peaks.

105    Above n 103, Pt 1, cl 7. 2.

106    Above n 103, Pt 6, cl 35, 7.

107    Above n 98, Pt 1, cl 3, 3.

108    Graeme SamuelAC, Independent Review of the Environment Protection and Biodiversity Conservation Act – Final Report, October 2020, 60-61.

109    Ian Cresswell, Terri Janke, Emma Johnston, State of the Environment Report 2021, Overview, Commonwealth of Australia, 2022.

110    First NationsHeritage Protection Allianceand Australian Government, Directions Report – First NationsCultural Heritage Reform.

111   This extension suggests the date of delivery of proposals to theMinister will also be extendedbeyond 30 May 2023.

112   Co-design – Alliance &Government, Joint WorkingGroup, Options Paper: First NationsCultural Heritage Protection Reform.

113    Above n 112, 1.

114    Above n 112, 1-2.

115    Above n 112, 2.

116    Above n 112, 3.

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