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: Commencing by noting the international condemnation of the destruction of 46,000-year-old Aboriginal cultural heritage by a mining company in Western Australia in 2020, the paper examines the extent to which current Australian Indigenous cultural heritage legislation reflects contemporary international expectations regarding Indigenous Peoples’ right to enjoy cultural heritage. The examination takes place in two parts. The first examines the theoretical basis underpinning collective rights to cultural heritage in the particular context of Indigenous Peoples’ right to enjoy cultural heritage. The second part of the paper examines national Indigenous cultural heritage legislation in Australia and several examples of sub-national legislation: the states of Western Australia, Victoria and the Northern Territory. The analysis in this regard focusses on those aspects of this legislation relevant to land based Indigenous cultural heritage and project approvals. The paper concludes by suggesting that in light of the examination conducted there is an urgent need for thorough reform of Australian Indigenous Cultural Heritage legislation to align it with contemporary international expectations and the steps currently underway in Australia to achieve this goal.

1.  Introduction

On 24 May 2020, as part of the expansion of itsBrockman 4 Mine, the Rio Tinto Corporation destroyed the Juukan Gorge in thePilbara region of northern Western Australia, a site rich in Aboriginal culturalheritage, located on the lands Puutu Kunti Kurrama and Pinikura (PKKP) people.This included material evidencing continual human occupation of the area forover 46,000 years. Subsequent evidence showed that Rio Tinto investigatedseveral options for the expansion of the mine. The option that included thedestruction of Juukan Gorge generated an additional revenue of $A135m over theother options evaluated. Rio Tinto has a global annual revenue of $A43.165b.

Thedestruction was authorised under the Aboriginal Heritage Act 1972 (WA)and did not breach an Indigenous Land Use Agreement under the Native TitleAct 1993 (Cth) between Rio Tinto and the PKKP people. No application forprotection under the Aboriginal and Torres Strait Islander HeritageProtection Act 1984 (Cth) was made in relation to the destruction.

Despitethe apparent legality of the action, the destruction of Juukan Gorge causedoutrage both nationally and internationally. It was condemned by politiciansfrom both sides of politics. The Australian Senate established a parliamentaryinquiry to be undertaken by the Joint Standing Committee on Northern Australia.The senior leadership of Rio Tinto apologised for the action and instigated a reviewof its actions headed by a prominent non-executive board member. Largeinstitutional investors such as the global fund manager Aberdeen StandardInvestors and superannuation funds Australian Super, HESTA and the Britishpublic sector fund group, the Local Authorities Pension Fund Forum, allannounced they were reviewing their investments in Rio Tinto.[1] Ultimately the Rio TintoBoard dismissed the company’s Chief Executive Officer and other relevant seniorexecutives in response to the incident.

Thelawful destruction of Juukan Gorge tragically serves to highlight an apparentdisjuncture between domestic Australian Indigenous cultural heritagelegislation and contemporary discourse regarding the nature, content and evenexistence of a collective human right to enjoy cultural heritage. Of course,this disjuncture is not unique to Australia. Many First Nations peoplesglobally, , have articulated the tragic inadequacy of municipal IndigenousCultural Heritage (ICH) legislation in the face of the demands of the resourcesand other industries.

Thisis true also in Nordic countries. The three Nordic countries with Samipopulations endorsed the (non-binding) United Nations Declaration of theRights on Indigenous Peoples[2](UNDRIP), however municipal ICH legislation in these countries does not reflectthe commitments contained in UNDRIP. This is so in respect of Norway - in whichthe Act Concerning the Cultural Heritage[3]and the Finnmark Act[4]provide some level of protection of ICH but not to the standard expected byUNDRIP - but more so in both Sweden and Finland without equivalent municipalICH legislation affording protection and rights in respect of ICH. Thesedeficiencies highlight the significance of an examination of legislation andefforts towards legislative reform in other, non-Nordic, jurisdictions.

Thediscourse regarding the collective human right to enjoy cultural heritage iswell-travelled but inconclusive. Inevitably, before one can arrive at specificationof the content of such a collective human right the issues examined inthe discourse will necessarily traverse several incidental matters. Theseinclude: the development of the recognition enjoyment of cultural heritage as ahuman right; the notion of collective human rights; the identity of thecollective holding the rights; and the juxtaposing of an individual right toenjoy cultural heritage against a collective right. However, the discourse mustalso extend further to require consideration of the development of the meaningof the terms: ‘culture’, ‘heritage’ and the composite term ‘cultural heritage’ Thecontextualisation of this discourse within the specific realm of IndigenousCultural Heritage adds a particular and additional dimension to thediscourse onte content of such a right. .

Thepurpose of this paper is not to enjoin the theoretical narratives around such aright but rather to attempt a very limited and practical contribution to thedevelopment of thefield. That contribution is an examination of the extent ofrecognition of a collective right to enjoy ICH in national and sub-nationalAustralian law with a particular focus on ICH legislation relevant to physicalproject approval (as opposed to legislation dealing with intangible ICHunrelated to land-based projects). To achieve this specific purpose, however,it is necessary to devote some attention to reviewing the current literatureregarding the content and definition of the right to enjoy ICH in order toidentify the extent of this right’s recognition in Australian law.

Accordingly,the paper will proceed in three sections following this introductory section.Section Two reviews the development of the notion of a collective human rightparticularly in the context of a collective right to enjoy Indigenous culturalheritage. The section identifies relevance of the principle of Free Prior andInformed Consent to the field of ICH. Appropriately given the increasingrecognition being afforded to the document, the section closely examines theprovisions of UNDRIP as a statement of the contemporary content of the right ofIndigenous Peoples to enjoy ICH.

SectionThree of the paper utilises the theoretical conclusions reached in the previoussections as basis for an assessment of current Australian ICH legislation.There are nineteen relevant pieces of legislation at a national andsub-national level in Australia. All this legislation is identified.  However, there is a more detailed examinationof the national legislation and that applicable in Western Australia (both atthe time of the desecration and currently), Victoria and the Northern Territoryas examples of different models of legislation. As explained in greater detailin the body of the paper, this selection is deliberate. The AboriginalHeritage Act 1972 (WA) is representative of much legislation of the periodwhich could be said to have a foundation in western archaeology. Thisfoundation continues to resonate in the current versions of much legislation.This resonance is illustrated by the comparison with the (yet to be commenced) AboriginalCultural Heritage Act 2021 (WA). By contrast the Aboriginal Heritage Act2006 (Vic.) and the Northern Territory Aboriginal Sacred Siters Act 1989(NT) represent legislation with a foundation more closely connected to arecognition of the land rights of Traditional Owners.

Thepaper concludes (in Section Four) by suggesting that the stark contrast betweenthe recognition of the right to enjoy ICH as understood under internationalnorms and the realisation of this right as embodied in Australian domestic lawunderpins an urgent need for legislative reform in this area. The conclusionnotes the recommendations of the Joint Standing Committee on Northern Australiainquiry in this regard. It also particularly highlights the advocacy of FirstNations Groups toward this end.

 

1.    IndigenousPeoples and rights to enjoy cultural heritage

GeneralPrinciples

Aright to enjoy cultural heritage is contested notion at many levels. At onelevel the role of the state in determining what constitutes cultural heritage[5] and what consequences flowfrom such a designation is in contest with the private property rights of theowner of the material said to constitute cultural heritage.[6] The process ofdetermination by the state may also be contested. As Xanthaki describes it:

…usually these choices are left to the elites of each section of the population,either the elites of the community itself or of the elite in the statestructure. Very often the ‘experts’ who decide what needs to be preserved andwhat not, at times without even consulting and getting the agreement of thecommunity[7]

Atanother level the nature of a “right” to enjoy cultural heritage atinternational law is also the subject of contest. Is such a right an individualright, an individual right enjoyed in the company of others or a collectiveright?[8]

Thesecontests exist in relation to a general right to enjoy cultural heritage.However, the application of those general principles in the context ofIndigenous Peoples raise specific issues which will be briefly considered.

Collective Indigenous Rights

A key element of collective rights is thenature of the collectivity. In the jurisprudence emanating from Committee onEconomic, Social and Cultural Rights (CESR) regarding the right of everyone totake part in cultural life there is reference to the “community or group”;[9] in the equivalent HumanRights Committee (under the International Covenant on Civil and PoliticalRights) jurisprudence regarding Article 27 – (the Rights of Minorities)there is reference to “minority group.”[10]

There is a need for clarification of theseterms in the context of the right ofIndigenous Peoples to enjoy cultural heritage. Before considering the relevantprovisions of UNDRIP it is useful to consider other relevant authority.

The UN High Commissioner on Human Rights (UNHCHR)notes of this matter:

There is no singularly authoritative definition ofindigenous peoples under international law and policy, and the [UNDRIP] doesnot set out any definition. In fact, its articles 9 and 33 state thatindigenous peoples and individuals have the right to belong to an indigenouscommunity or nation, in accordance with the traditions and customs of thecommunity or nation concerned, and that they have the right to determine theirown identity.[11]

TheInternational Labor Organisation’s Indigenous and Tribal Peoples Convention(No. 169)[12](ILO Convention 169) at article 1 does provide the following definition ofIndigenous and Tribal Peoples:

1. … (a) Tribal peoplesin independent countries whose social, cultural and economic conditionsdistinguish them from other sections of the national community, and whosestatus is regulated wholly or partially by their own customs or traditions orby special laws or regulations; (b) Peoples in independent countries who areregarded as indigenous on account of their descent from the populations whichinhabited the country, or a geographical region to which the country belongs,at the time of conquest or colonization or the establishment of present Stateboundaries and who, irrespective of their legal status, retain some or all oftheir own social, economic, cultural and political institutions.

2. Self-identificationas indigenous or tribal shall be regarded as a fundamental criterion fordetermining the groups to which the provisions of this Convention apply.

The UNHCHR also refers to the work of Martínez Cobo who suggests thefollowing additional indicia:[13]

·       Historical continuity withpre-invasion and/or pre-colonial societies that developed on their territories;

·       Distinctiveness;

·       Non-dominance; and,

·     Adetermination to preserve, develop and transmit to future generations theirancestral territories and identity as peoples in accordance with their owncultural patterns, social institutions and legal system.

Armed with these general definitions ofthe term “Indigenous Peoples”, and noting the significance of collectiveself-identification within these, it is also important to identify why culturalheritage has a particular importance to Indigenous Peoples. While there is muchwritten on this topic, Lenzerini [14] provides an elegant andsuccinct summary:

…cultural heritage represents an essential part of thecultural identity of most indigenous peoples, who hold with their heritage aspiritual — more than material — relationship. Given the holistic perspectivecharacterizing indigenous peoples’ conception of life — according to which a cosmicorder is guaranteed through living in harmony with nature and all otherexisting beings — their cultural heritage defines their distinctive identitiesas peoples. Depriving indigenous peoples of their cultural heritage, therefore,does not simply mean stealing their material property but can also mutilationof an element of their belief system essential to their existence.

Three matters should be apparent from thispreliminary discussion. First the nature of Indigenous Peoples distinct fromother national minorities. Second, the significance of self-identification inthe definition of Indigenous Peoples. Third, the central role of culturalheritage in community identity and existential continuity as a Peoples.

With these matters identified, it isappropriate to examine how they are dealt with in relevant internationalinstruments. To commence with the ILO Convention (169). EMRIP [15] provides a valuablesummary:

Drawing attention to the distinctive contributions ofindigenous peoples to the cultural diversity of humankind (preamble), theConvention requires Governments to promote and safeguard the cultures ofindigenous peoples through special measures (arts. 2 and 4), and to recognizeand protect their cultural values and practices (art. 5). Governments arerequired to respect and safeguard the cultural and traditional values ofindigenous peoples and (art. 13) their use and management of the land andnatural resources (arts. 14 and 15), and ensure that the traditional activitiesof indigenous peoples are strengthened and promoted (art. 23). Governments arerequired to consult with and ensure the effective participation of indigenouspeoples at all levels of decision-making in political, legislative andadministrative bodies and processes which may affect them directly, includingtheir cultural development, and ensure that studies are carried out to assessthe cultural, inter alia, impact of development activities on indigenouspeoples (arts. 6 and 7).

It can be seen that articles 2, 4, 5, 13,and 23 go directly to matters of cultural protection and promotion. Articles 6,7, 14 and 15 are also relevant to the enjoyment of cultural heritage but in theparticular context of the impacts of development activities. These two aspectsof the cultural heritage enjoyment and protections can also be seen in UNDRIP.

Before detailing the relevant provisionsof UNDRIP three matters should be noted. First, it is broadly recognised thatUNDRIP does not impose new international legal obligations on states. Rather,it restates existing international legal obligations but framed in the specificcontext of Indigenous Peoples.[16] Second, The UNDRIP as aGeneral Assembly resolution does not by virtue of its status, have bindingeffect.[17]

Third, UNDRIP overwhelmingly sets out the rights ofIndigenous Peoples. This illustrated by the fact that a number of UNDRIParticles do make specific reference to Indigenous individuals.[18] These articles aside, the rights setout in UNDRIP are, in the language described above, “collective rights”. Thatis, in terms of the debate described by Dwight Newman[19] these are rights held by “indigenouscommunities themselves” not by “individuals in community with others”.Davis notes an additional complication around this issue arising from “the lack of consensus amongIndigenous groups themselves on how to balance Indigenous rights with otherhuman rights.” [20] With these preliminarymatters identified it is timely to broadly describe the UNDRIP provisions inquestion.

UNDRIP Articles 11, 12,13, 14, 15, 25, 31, and 32 are relevant provisions to a general right to enjoycultural heritage[21]. Article 40 (dispute resolution) isalso of relevance.

Asidefrom these rights dealing directly with matters of culture and culturalheritage, Article 32 addresses ‘the right to determine and developpriorities and strategies for the development or use of their lands orterritories and other resources.’ At article 32.2 the Declaration sets out:

States shallconsult and cooperate in good faith with the indigenous peoples concernedthrough their own representative institutions in order to obtain their freeand informed consent prior to the approval of any project affecting theirlands or territories and other resources particularly in connection with thedevelop­ment, utilization or exploitation of mineral, wa­ter or otherresources.” (Emphasis added)

Beforeconsidering the relevance of Free Prior and Informed Consent (FPIC) to theenjoyment of cultural heritage it should be noted that Article 18 informs thereference to “representative institutions” in Article 32. Article 18 providesfor “the right to participate in decision making in matter which would affecttheir rights through representatives chosen by themselves in accordance withtheir own procedures…”.

As illustrated by the description of thedesecration of Juukan Gorge which commenced this discussion, the ability tocontrol projects affecting land in connection with the development orexploitation of mineral resources can be crucial to a right to enjoy culturalheritage. In turn this suggests that domestic legal regimes regarding controland management of Indigenous (and other) lands are also relevant to a right toenjoy cultural heritage. The general issue of “land rights” is addressed inarticle 26. The significance of property in land of course highlights thesignificance of the proposition put forward by Joseph Sax[22]; that individual (orcollective) property regimes are a major component in the management of(certainly tangible) cultural heritage. This is especially so in the case ofICH which, if it is not on Indigenous lands will be located (and therebyusually controlled by) on settler-lands from which Indigenous owners have beendispossessed.

In addition to article 32.2 the FPICformulation is also used in articles 10, 11 19, 28 and29. Considerable theoretical debate exists around the theoretical foundation ofFPIC. These are described by Andrew Erueti.[23] The author describes thedevelopment of UNDRIP as influenced by those Indigenous representatives from“the North” (primarily Canada, Australia, New Zealand and the United States –CANZUS) and those from “the South” Africa, Asia and Latin America. The Northpursued rights based in “sovereignty”; the South had a greater focus onnon-discriminatory human rights approaches. He states:

The political narrative of the declarations indicatesthere are two forms of argument underlying the indigenous rights in thedeclaration, one based on human rights and the other on decolonization.[24]

To Erueti the rights contained in Articles26 and 32 to control the natural resources located in their lands and for thesenot to be developed without the Free, Prior and Informed Consent of therelevant Indigenous peoples lie in the decolonization  model and informed not by the humanrights  model but rather “…is primarilydirected at the negotiation between two nations of their terms ofco-existence.”[25]To Erueti this approach allows for a “stronger reading” of rights such as thosecontained in Articles 26 and 32. It arguably also highlights the central roleof the Indigenous community in identifying material deemed ‘cultural heritage’as opposed to the state endorsed “experts” as described by Xanthaki.[26]

Despite this ongoing debate, on eitherconstruction it is apparent that the rights in respect of Indigenous lands are collectiverights in the sense described above. It can be seen then that while IndigenousPeoples’ rights to enjoy cultural heritage are particular, they can still belocated within a general model of collective rights as discussed in theprevious section.

Having thus considered the particularnature of Indigenous Peoples’ rights to the enjoyment of cultural heritage; itremains to examine the application of these various bases to a right to enjoycultural heritage in Australian legislation which is the primary task of thispaper.

 

2.   Australian Indigenous CulturalHeritage Legislation

Before commencing examination ofAustralian Indigenous cultural heritage (ICH) legislation, it is useful to notethe Australian domestic constitutional framework. Under Australianconstitutional arrangements both the federal (Commonwealth) parliament and thesub-national (state and territory) governments can pass laws pertaining toIndigenous (in Australia - Aboriginal and Torres Strait Islander) Peoples.However, Commonwealth law will prevail over any inconsistent state or territorylaw to the extent of any inconsistency. In the case of ICH legislation both theCommonwealth and each of the states and territories have passed legislation. Inaddition, there is also Commonwealth legislation relating to land rightsrelevant to ICH (the Native Title Act 1993 (Cth) – the “NTA”) andCommonwealth legislation relating to land rights applying only to the NorthernTerritory (the Aboriginal Land Rights (Northern Territory) Act 1976(Cth.) – “ALRA”). While there are some pieces of state and territory landrights legislation, these are not directly relevant to this discussion.

This exception noted, there are eighteen piecesof legislation relevant to ICH. Six of these are Commonwealth legislation asfollows:

·     Aboriginal and Torres Strait IslanderHeritage Protection Act 1984 (Cth)

·     Environment Protection andBiodiversity Conservation Act 1999 (Cth)

·     Aboriginal Land Rights (NorthernTerritory) Act 1976 (Cth)

·     Protection of Movable CulturalHeritage Act 1986 (Cth)

·     Underwater Cultural Heritage Act 2018(Cth)

·     Native Title Act 1993(Cth)

State and Territory Legislation

·     Heritage Act 2004 (ACT)

·     NationalParks and Wildlife Act 1974 (NSW)

·     AboriginalLanguages Act 2017 (NSW)

·     Northern Territory Aboriginal SacredSites Act 1989 (NT)

·     AboriginalCultural Heritage Act 2003 (Qld)

·     Human Rights Act 2019(Qld)

·     TorresStrait Islander Cultural Heritage Act 2003 (Qld)

·     Aboriginal Heritage Act 1988(SA)

·     Aboriginal Heritage Act 1975(Tas)

·     Aboriginal Heritage Act 2006(Vic)

·     Charter of Human Rights andResponsibilities Act 2006 (Vic)

·     AboriginalHeritage Act 1972 (WA)

·     AboriginalCultural Heritage Act 2021 (WA)

Clearly, given this volume of legislationthis discussion will not be able to review each law. Rather there will be somecomment on the general nature of much of this legislation and a more detailedanalysis of selected pieces of legislation.

 

State and Territory Legislation – generalcomments

Smith[27] discusses the developmentof Aboriginal heritage legislation in NSW, Victoria and Tasmania that tookplace in the late 1960s and 1970s.[28]  While not the subject of Smith’s analysis,the Aboriginal Heritage Act 1972 (WA),to be examined in closer detail below, is legislation of this era.

Smithnotes that this period was characterised by two relevant contemporaneousdevelopments. First, the advent of processual archaeological discourse thatsought to portray a new university trained “professional” archaeologist,distinct from the previous amateur manifestations. The new archaeologistssought to control through regulation the practice of archaeology in the countryand were active in seeking the creation of legislation to facilitate thisregulation.

Thesecond feature was the development of an Aboriginal political activism. AsSmith notes:

Aboriginalpeople were concerned in the late 1960s and early 1970s to recapture a pride intheir identity and were actively reshaping Aboriginality as part of apoliticised cultural revival. Cultural heritage was important in symbolisingand providing material links with Aboriginal cultural identity. Issues ofidentity became central to negotiations with governments over the legitimacy ofAboriginal claims.

Further,Aboriginal people used claims to land andmaterial culture as crucial strategies to forge new cultural and politicalidentities. Increasingly assertive claims were made via the Land Rightsmovement and the ethics of the collection practices of museums andarchaeologists were called into question.[29]

Inthe context of dealing with Indigenous political aspirations then, Smithsuggests, the development of archaeological based ICH legislation (such as theICH provisions of the National Parks andWildlife (Amendment) Act 1969 (NSW)) had significant implications. She goeson to describe these as follows:

There is a very real sense that the archaeologists inthe 1960s perceived themselves as dealing with a ‘fossilised’ past… Theperception of a ‘vanished people’ is embedded in the use of the term ‘relics’specifically as it implies that Aboriginal heritage no longer exists within thecontemporary cultural and social contexts.

…the term relic also emphasises the physicality ofAboriginal heritage and operates to deny the non-material aspects of culturalheritage. What ultimately is being protected by these Acts is archaeologicaldata and not Aboriginal ‘heritage’ as such.[30]

Smith’s suggestionis that the relegating of ICH to archaeology which is a feature of thelegislation she examines was, in part, an attempt to deny the contemporaryexistence of Indigenous culture and thereby also broader Indigenous aspirations– including those as to land rights.

Within Smith’sanalysis can also be seen the process described by Xanthaki,referred to above, of state ‘experts’ assuming the role of the determination ofwhat is and is not Indigenous cultural heritage worthy of legislativeprotection.

As noted in theintroduction to this paper this ‘archaeological privileging' is a feature ofmuch legislation of this period across Australia. The NSW and Tasmanialegislation continue to incorporate this approach. So too did the Aboriginal Heritage Act 1972(WA) (“WAHA”) that authorised the destruction of Juukan Gorge. In 2021 the WA Parliamentpassed new legislation (the Aboriginal Cultural Heritage Act 2021 (WA) -WACHA) that will repeal the WAHA. However, at the time of writing this newlegislation had not yet commenced.

Despite its imminent repeal the WAHAstands as a relevant illustration of the structure and concepts of legislationof the period. For this reason, the WAHA will be utilised for the purposes ofanalysis in this section.

A second era in State and Territory ICHlegislation commenced with the decision of the High Court of Australia in Mabo& Ors v Queensland & Ors (No 2) (1992) 175 CLR 1 (Mabo) whichrecognised for the first time in post-colonial Australian history the possibleongoing existence of Indigenous interests in land. The example of this era oflegislation that will be considered in the Aboriginal Heritage Act 2006(Vic) (“VAHA”) the most recent of the post -Mabo ICH legislation. Thepaper will also draw comparisons between the VAHA and the WACHA. The VAHA wasselected for the purposes of analysis over the (also post-Mabo) Aboriginal Cultural Heritage Act 2003 (Qld)and Torres Strait Islander CulturalHeritage Act 2003 (Qld) as the VAHA was enacted subsequently to, andinformed by, the Queensland legislation and constitutes a clearer example ofpost Mabo legislation.

Consideration will also be given to the NorthernTerritory Aboriginal Sacred Sites Act 1989 (NT) (NTASSA”). Thislegislation, although pre-dating Mabo, dovetails with ALRA, the 1976Commonwealth legislation establishing a land rights regime of application onlyin the Northern Territory. Many of the concepts incorporated in ALRA and heNTASSA were subsequently incorporated into UNDRIP.

Each of these pieces of legislation dealswith a range of ICH related matters. For example, the VAHA legislationestablishes structures and processes around secret and sacred objects,Aboriginal ancestral remains and intangible Aboriginal heritage. These aspectsare beyond the scope of this discussion the focus of which is only upon theprocesses relevant to authorising developments on land which may damage ICH aswas the case in Juukan Gorge. However, before considering the state andterritory legislation it is important to appreciate the role of Commonwealthlegislation.

 

Commonwealth Legislation

Given the focus of this discussion ontangible, land-based ICH, the most relevant piece of Commonwealth legislationis the Aboriginal and Torres Strait Islander Heritage Protection Act 1984(Cth) (“ATSHIPA”) and the NTA. The Environment Protection and BiodiversityConservation Act 1999 (Cth) contains provisions relating to world heritageproperties (under the 1972 UNESCO Convention) and “national heritageplaces”. While there are circumstances that this legislation can have relevanceto ICH [31] they are limited and thusthis legislation will not be considered in detail.

Thegeneral structure of ATSIHPA is that the Minister (currently for theEnvironment) may receive an application (“orally or in writing”) “by or onbehalf of an Aboriginal or group of Aboriginals seeking the preservation orprotection of a specified area from injury or desecration”.[32] A 30-day emergencydeclaration under s 9 can be made if the Minister is satisfied the area isindeed a significant Aboriginal area and under serious and immediate threat ofinjury or desecration. A potentially ongoing s 10 declaration can be made ifthe Minister is again satisfied the area is a significant Aboriginal area andunder threat of injury or desecration andhas received and considered a report going to the various matters set outin subsections (3) and (4). Contravention of the provisions of a declaration isan offence.[33]Declarations are disallowable by parliament,[34] and can only be madeafter consultation with the relevant state or Territory Minister.[35] Under s 12 a declarationcan also be made regarding a significant Aboriginal object.

ATSIHPAis a measure “of last resort”. That is, it is intended to be legislation thatis deployed only when relevant state and territory legislation has not beeneffective in addressing Indigenous concerns regarding the injury or desecrationof an Aboriginal object or area of significance.[36] This fact is alsoapparent from s 7 of the Act which allows for the concurrent operation of stateor Territory law where possible. It is also apparent from the basic structureof the legislation. This is found in ss 9, 10 and 12 which allow Aboriginal andTorres Strait Islander individuals (only) to make an application for anemergency (s 9) or ongoing (s 10) declaration for protection in relation to anarea or object (s 12). The declaration is dependent upon the Minister forming apositive view in relation to the significance of the object or place underAboriginal or Torres Strait Islander tradition and even if a positive view isreached is discretionary (s 9(1)). This structure which is reminiscent of a“general heritage model”[37] or “declaration model” ofheritage legislation which requires the listing of a location in order forstatutory protection to be afforded.

Thisapproach can be contrasted with the “legislative model”, more common in stateand territory ICH legislation (discussed immediately below), which operates bydefinition and proscription. That is, the status of a site or area ofsignificance is derived from satisfaction of a statutory definition andinterference with that site is proscribed unless authorised.[38] The significance of thedistinction in this context is that the use of the declaration model requiressome positive action to be taken before the protective measures of thelegislation are engaged, the definition and proscription model operatespassively and requires positive action only if interference with a site (orobject) is contemplated. This emphasises the notion that ATSIHPA, is intendedas a “last resort” measure.

TheNTA is also relevant to ICH matters. At common law native title rights andinterests in Australia exist in recognition of the continuing (since theassertion of British sovereignty) traditional laws and customs of Indigenouspeoples as these relate to land. It is thus necessary for Indigenous peoples toshow a “traditional connexion” to the land in question. Where this can bedemonstrated (to the evidential satisfaction of the Federal Court of Australia)the rights and interests in land can range from a limited “exclusivepossession” to a right to carry on limited traditional activities on thesubject land. The extent of rights recognised is dependent on the nature ofland interests granted by the Crown since the assertion of British sovereignty.[39] The NTA builds on thiscommon law basis by also granting certain procedural rights to native titleholders or plausible native title claimants to negotiate with proponents ofsignificant land developments (including mining). The outcome of these negotiationscan result in agreements containing certain limited protections for ICH.[40] However, if there is noresolution coming from the negotiations the proponent can seek an order from anadministrative tribunal authorising the development. In over 98% of cases therelevant tribunal has authorised the proposed developments.[41] In the event the matteris determined by the tribunal, Indigenous people are denied the opportunity toreceive “royalty equivalent” benefits from the project[42].

Wherea native title determination application is made by the Federal Courtrecognising the existence of native title rights in subject land those rightswill be held or managed by a Prescribed Body Corporate (PBC) constituted by thenative title holders and incorporated under the Corporations (Aboriginal andTorres Strait Islander) Act 2006 (Cth). A PBC can thus be seen as a“representative institution” under UNDRIP Article 18.

Selected State and Territory Legislation

WAHA, VAHA, NTASSA and the WACHA are allbased on the “legislative model” mentioned above. That is in all thislegislation, interference (harm or damage) with Aboriginal cultural heritage(as defined) is made unlawful unless the interference is the subject of alegislative authorisation.[43] The key distinctionsbetween these laws lie in:

·     the scope of the definition of Aboriginalcultural heritage;

·     the basis upon and process by which aninterference authorisation can be granted; and

·     the identity of the body empowered togrant the authorisation.

These distinctions are also relevant wentanalysing ATSHIPA. It is these elements that will form the basis of thisanalysis.

Definition of Aboriginal cultural heritage

Under s 5 of the WAHA the Actrelevantly applies to:

any place of importanceand significance where persons of Aboriginal descent have, or appear to have,left any object, natural or artificial, used for, or made or adapted for usefor, any purpose connected with the traditional cultural life of the Aboriginalpeople, past or present; [and] any sacred, ritual or ceremonial site, which isof importance and special significance to persons of Aboriginal descent;

The more recent WACHA in s 12defines Aboriginal cultural heritage as meaning:

…thetangible and intangible elements that are important to the Aboriginal peopleof the State, and are recognised through social, spiritual, historical,scientific or aesthetic values, as part of Aboriginal tradition.

In s 11 “Aboriginal tradition” is defined as meaning:

(a)the living, historical and traditional observances practices, customs, beliefs,values, knowledge and skills of the Aboriginal people of the State generally,or of a particular group or community of Aboriginal people of the State; and

(b)includes any such observances, practices, customs, beliefs, values, knowledgeand skills relating to particular persons, areas, objects or relationships;

The reference to intangible elements inthe definition of Aboriginal Cultural Heritage in s 12 is somewhat underminedby the definition of "Aboriginal place” also in s 12 as:

anarea …in which tangible elements of Aboriginal cultural heritage are present.

The “tangible” requirement in the Aboriginal Place issomewhat modified by the definition of “cultural landscape” also in s 12 whichis as follows:

agroup of areas …interconnectedthrough tangible or intangible elements of Aboriginal cultural heritage.

 

The VAHA has a broader definitionof Aboriginal place in s 5:

anAboriginal place is an area in Victoria or the coastal waters of Victoria thatis of cultural heritage significance to Aboriginal people generally or ofa particular community or group of Aboriginal people in Victoria.

The definition is expressed to includeland, waters, natural features and landscapes, and archaeological sites.Cultural heritage significance is earlier (s 4) defined to include:

archaeological,anthropological, contemporary, historical, scientific, social or spiritualsignificance; and significance in accordance with Aboriginal tradition:

Finally,“Aboriginal tradition” is defined (also s 4) as:

the body oftraditions, knowledge,observances, customs and beliefs of Aboriginal people generally or of aparticular community or group of Aboriginal people; and any such traditions, knowledge, observances, customs or beliefs relating to particularpersons, areas, objects or relationships;

The Victorian definitions are reminiscentof the definition of “sacred site” and “Aboriginal tradition” utilised in the NTASSAwhich in turn picks up the definition used in ALRA. These definitions are containedin ALRA s 3 and are as follows:

Sacred site means a site that is sacred to Aboriginals or is otherwiseof significance according to Aboriginal tradition, and includes any land that,under a law of the Northern Territory, is declared to be sacred to Aboriginalsor of significance according to Aboriginal tradition.

Aboriginaltradition is defined as:

…the body oftraditions, knowledge,observances, customs and beliefs of Aboriginal people generally or of aparticular community or group of Aboriginal people; and any such traditions, knowledge, observances, customs or beliefs relating to particularpersons, areas, objects or relationships;

Notablein regard to each of these definitions are the references to, broadly defined,“Aboriginal tradition”. The WAHA does not define this term. The scope of theoperation of these Acts then has the potential to give effect to UNDRIParticles 11, 12, 13, 15 and 25. It is the operational aspects of thelegislation that will determine whether this potential is realised.

Basisand process of interference authorisation

In WAHA an “owner of land” can givenotice to a committee established under the Act that they wish to use the landin a way which may cause the (s 17) offence of damaging an Aboriginal site. Thecommittee is comprised of certain government officials and other personsappointed by the Minister (s 28). The Ministerial appointments are required tobe “experts” and are not required to be Aboriginal people. There are currently tenmembers of the Committee, five of whom are Aboriginal people and three of whichare the ex-officio government officials. The committee is obliged to “form an opinion as to whether there is anyAboriginal site on the land, [and to] evaluate the importance and significanceof any such site” (s 18(2)) and then provide a recommendation to the relevantMinister as to whether the land use should be allowed. The Minister hasdiscretion to accept or not, or subject to conditions the recommendations. The landownercan seek review of the Minister’s decision to an administrative tribunal.

In the WACHA no authority tointerfere is needed if the proposed activity is defined as “exempt” or a “Tier1” ("involving no or minimal ground disturbance”) activity (s 100) and“due diligence” (s 102) has been carried out. Damage to Aboriginal culturalheritage (ACH) arising from these activities will not constitute an offenceunder the Act.[44]

A Tier 2 Activity (low level grounddisturbance) or a Tier 3 Activity (moderate to high level ground disturbance)(s 100) requires an ACH permit or ACH management plan.[45]

An ACH permit is granted by the ACHCouncil. The ACH Council is comprised of between 6 and 11 people all of whomare appointed by the Minister and half of whom must be Aboriginal ( s 21). Anapplicant for an ACH permit must give notice of their application to any nativetitle holders or applicants and (to the extent they are different) to the LocalAboriginal Cultural Heritage Service (LACHS). The LACHS for an area isappointed by the ACH Council in accordance with criteria contained in s 39.While in the usual course a PBC under the NTA would satisfy these criteria,that decision is ultimately up to the ministerially appointed ACH Council.

The LACHS and any other notified party canmake submissions to the applicant and the ACH Council in relation to theapplication but, under the terms of WACHA s 120(1), it must grant the permit ifsatisfied that steps have been taken to minimise harm to ACH[46] and the application isprocedurally correct. An applicant can ‘appeal’ to the Minister if the ACHCouncil refuses a permit (s 131). Aboriginal owners of cultural heritage haveno similar appeal right against a decision to grant an ACH permit.

An ACH management plan is required forTier 3 activities (moderate to high ground disturbance). The management planmust inter alia set out the extent to which harm to ACH is authorisedand how the proposed activity will be managed, wherepossible, to avoid, or minimise, the risk of harm beingcaused.[47] The ACH management planhas a potentially different approval process to an ACH permit. Where a LACHS isappointed a proponent (and the LACHS) must use their best endeavours to reachan agreement regarding the ACH management plan within a prescribed period.[48] If agreement is reachedthe management plan must still be approved by the ACH Council (s 147). The ACH Council may approve themanagement plan if satisfied that informed consent[49] was granted to the planand if satisfied with its content (s 151). In the event the ACH Council refusesto approve a management plan, the proponent can ‘appeal’ to the Minister (s155).

In the event there is no agreement reached by aproponent and a LACHS (or other native title party) a proponent can seek tohave the Minister acting after having considered the advice of the ACH Council,nevertheless, approve the management plan (s 157).

There is no equivalent ability for Aboriginal ownersof cultural heritage to appeal a decision of the Minister to approve amanagement plan authorising harm to their cultural heritage.

In the VAHA authorisation tointerfere with Aboriginal cultural heritage may be sought by any persons whoproposes to undertake any works or development of land (s 44). An authorisationis only required to be sought in certain circumstances (s 46 – essentiallysignificant works or works in sensitive areas) however interference withAboriginal cultural heritage in any circumstances without an authorisation isan offence (ss 27-29). The authorisation is granted by a registered Aboriginalparty (RAP) or by the relevant government department where there is no relevantRAP.

A RAP is a corporation comprised of andrepresentative of Traditional Aboriginal Owners relevant to the area of itsappointment (s 150). There are currently 11 RAPs appointed with respect to 75%of the Victorian land area. A RAP is appointed by the Victorian AboriginalHeritage Council (VAHC). The VAHC is an statutory body corporate comprised ofup to 11 Victorian Traditional Aboriginal Owners appointed by the relevantMinister (ss 130, 131). Where a PBC exists the VAHC must appoint the PBC as aRAP for its relevant area (s151(2)).

A RAP (or the department if there is noRAP) can only refuse to grant an authorisation if the management planaccompanying the application is technically inadequate or does not includeappropriate measures to “minimise” harm to Aboriginal cultural heritage(ss 61, 63). A proponent aggrieved by a decision not to grant an authorisationcan seek review at an administrative tribunal (s 116). There is no provisionfor a RAP to refuse to approve a authorisation on the basis that the proposedharm while reasonably minimised still causes harm to Aboriginal CulturalHeritage that is unacceptable to the RAP.

The Charter of Human Rightsand Responsibilities Act 2006 (Vic) (Charter) at s 28provides:

It is unlawful for a public authority to act in a waythat is incompatible with a human right or, in making a decision, to fail togive proper consideration to a relevant human right

Section 19(2) of the Charter specificallyaddresses Indigenous cultural rights and states:

Aboriginal persons hold distinctcultural rights and must not be denied the right, with other members of theircommunity—

(a) to enjoy their identity andculture; and

(b) to maintain and use theirlanguage; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material andeconomic relationship with the land and waters and other resources with whichthey have a connection under traditional laws and customs.

Notable in this provision is theformulation of individuals “with other members of their community”.  It would appear a RAP, and certainly thedepartment, in considering an application for an authority to interfere withAboriginal cultural heritage may be obliged to consider an individualcultural right. Whether this right can be asserted as against the Indigenouscommunity’s views is at this stage uncertain.

The structure of the NTASSA issimilar to that of the VAHA. Under this legislation any person “who proposes touse or carry out work on land” (s 19B) may apply for an authorisation. Theapplication is made to the Aboriginal Area Protection Authority (AAPA). AAPA isan independent statutory body corporate comprised of 12 “custodians of sacredsites” nominated by the Aboriginal Land Councils established under ALRA (ss 5and 6). The (four) Aboriginal Land Councils are independent statutoryauthorities elected by the Traditional Aboriginal Owners in their respectiveregions of the Northern Territory.[50]An ALRA Aboriginal Land Council would satisfy the definition of “representativeinstitution” under UNDRIP Article 18.

AAPA may grant anauthorisation, after consultation with custodians of any sacred sites affectedby the proposals, in accordance with any agreement reached by the proponent andthose custodians or where: “the work or use of the land could proceed or be made without there beinga substantive risk of damage to or interference with a sacred site on or in thevicinity of the land”. (s 22).

At this level then the NTASSA provides the onlyexample of legislation in Australia where interference to Aboriginal culturalheritage (where constituted by sacred sites) cannot occur unless this ispursuant to an agreement with Traditional Owners. This achievement is somewhatcurtailed by the existence of ministerial review procedures contained in ss 30– 32. It is understood these provisions have never led to a reversal of an AAPAdecision to refuse to grant a certificate.

Notably the NTASSA at s 46 provides that“Aboriginals shall have access to sacred sites in accordance with Aboriginaltradition…”. This is the only legislative guarantee of access to ICH (to theextent it constitutes a “sacred site”) in the legislation reviewed.

One final aspect of note in relation to theauthority to interfere in the Northern Territory regime is that the provisionsof NTASSA extend only to ICH within the definition of Aboriginal sacredsites. ICH not comprised in a sacred site is either regulated under the Heritage Act 2011 (NT) (HA) or not the subject of anyregulation at all. Decisions under the HA are made by a Heritage Councilcomprised of ten ministerial appointees only one of which need be Aboriginal(HA s 128).

 

Identity of the body empowered to grantthe authorisation to interfere with ICH

This issue has been largely addressed in theprevious section and need only be briefly recapped here.

·     Under the WAHAan authorisation to interfere with ICH, where it is necessary, is granted bythe Minister taking into account the advice of a ministerially appointedCouncil.

·     By contrastpursuant to the new WACHA regime an authorisation to interfere with ICH, whereit is necessary, can be granted by a LACHS for a Tier 3 activity. If the LACHSrefuses consent, the authorisation is granted by the minister — taking into accountthe advice of a ministerially appointed Council. The Council also approvesauthorisations to interfere with ICH pursuant to a Tier 2 activity. In short,Traditional Owners are empowered only to consent to interference withactivities that will cause major ground disturbance. They are not empowered torefuse consent.

·     In Victoria,under the VAHA, unless proposed works are significant, no authorisation isrequired — although damage to ICH without an authorisation will stillconstitute an offence. The RAP can grant an authorisation to interfere inrelation to significant works. The RAP can only not approve theauthorisation if there are insufficient proposed actions to minimise (asopposed to prevent) damage to ICH. If no RAP is appointed the authorisation,where required, is granted by the bureaucracy. Thus, in Victoria TraditionalOwners are empowered to consent to significant interference with ICH but inonly very limited circumstances to refuse consent.

·     In theNorthern Territory but only in relation to sacred sites under the NTASSA theAAPA which is appointed by UNDRIP Article 18 representative institutions cangrant an authority to interfere only if there is no “substantive risk of damage to orinterference with a sacred site” (s 22(1)). If there is such a risk only thelocal custodians, the scared site can consent to the grant of theauthorisation. They can also refuse to grant consent. However, these decisionsare the subject of Ministerial review provisions. Noting these reviewprovisions (and the limitations in the definition of sacred site) the NTASSA isthe only that can be said to give effect to the principle of FPIC which iscentral to many of the UNDRIP ICH provisions.

 

Consideration of Legislation in relationto approaches to the enjoyment of cultural heritage.

The first point that is apparent from theforegoing review is that the role of private property in defining the enjoymentof cultural heritage as described by Sax[51] is significant. In eachof the regimes described above, it is the (non-Aboriginal) owner of the landupon which ICH is located that has the prerogative to initiate the process of seekingauthorisation to interfere with cultural heritage. The limited agreement makingrights under the NTA do little to modify this conclusion. Further, it is onlyin the NT that Traditional Owners have a right, as against private propertyowners, to even access land-based ICH.

Beyond this, the preeminent role of thestate (in the form of the Western Australian minister or the ACH Council) isprominent in the WAHA. Despite the potentially broad application of the WAHAapparent from its s 5, it is the advisory committee of experts “form[s] anopinion as to whether there is any Aboriginal site on the land, [and to]evaluate the importance and significance of any such site”. It is for theminister to determine whether, despite the committee’s opinion as to theimportance and significance of the site, interference can occur. This is aclear example of the state “property” rights also illustrated by the UNESCO Conventionsand discussed above. Completely absent from the WAHA is any influence of thediscourse regarding either individual or collective rights in respect ofcultural heritage.

The Commonwealth’s ATSHIPA by contrast ismore reminiscent of the WAHA. Its application is dependent upon a state(ministerial) declaration as to the significance of cultural heritage and eventhen, is discretionary.

The VAHA does reveal some influence ofthis rights discourse. This is manifested by the RAP structure which is centralto the operation of the VAHA. A RAP can legitimately be seen as a“representative institution” of the relevant Indigenous community for thepurposes of UNDRIP article 32.2 (FPIC) and other aspects of the Declaration.The inclusion of the RAP structure within the VAHA is an acknowledgement ofsome notion of Indigenous Peoples’ control of their cultural heritage. Balancedagainst this however is the limited authority given to the RAP. A RAP is notable to determine whether there will be activities that impact on culturalheritage — only to ensure that such activities minimise the harm. Thatis, a RAP is given limited ability to manage the destruction of itsconstituency’s cultural heritage. this is still clearly well short of theexpectations arising from UNDRIP.

The WACHA, the most recent of thelegislation considered, does give some role to organisation that may constituterepresentative institutions. However, this role is limited to granting consent(but not to refusing consent) to the management of activities that are likelyto cause significant damage to ICH. In this respect the WACHA could be seen tohave moved from an archaeological conception of ICH and be conceptually closerto VAHA However the WACHA is less consistent with the UNDRIP articulation ofrights to enjoy cultural heritage than the Victorian legislation that precededit by 15 years.

The NTASSA does constitute a significant recognitionof the UNDRIP articulated rights.[52] Decisions under theNTASSA are made by a body comprised of nominees of representative institutionsin consultation with affected custodians. In addition, local custodians areable to reach independent agreement with proponents independently of the AAPA.Further, in considering whether to grant an authorisation AAPA is required toconsider only the risk of damage or interference with the ICH. That is to sayAPPA can refuse to grant an authorisation if there is a substantial risk ofdamage or interference (unlike the Victorian minimisation approach). Finally,only the NTASSA ensures Indigenous Peoples’ right of access to culturalheritage located on land.

To the extent possible of legislationdealing with land based cultural heritage (again to the extent this isconstituted in a “sacred site”) then the NTASSA does implement the expectationof collective Indigenous rights arising from UNDRIP.

 

3.   Conclusion

This discussion has attempted to analysevarious approaches to the right to enjoyment of cultural heritage. It hassuggested four approaches are apparent from a review of existing literature.These are: a private property approach; a state property approach; anindividual rights approach; and a collective rights approach. It then positedthat particular Indigenous rights to enjoy cultural heritage as manifestedespecially by UNDRP are a manifestation of the collective rights model.

Building upon this theoretical analysis,the discussion proceeded to examine four examples of the regimes established byAustralian cultural heritage legislation: the Commonwealth’s; WesternAustralia’s; Victoria’s; and that of the Northern Territory. This examinationsuggested that the private property approach underpinned each of these regimes.It also indicated that the Commonwealth and Western Australian regimes were operatedon a state property basis with no real regarding for collective (or individual)Indigenous Peoples’ rights. It noted that the Victorian regime did manifestsome influence from the collective Indigenous rights discourse but that thiswas very limited the new WACHA legislation was even more limited. By contrastthe regime established in the Northern Territory did incorporate significantrecognition of the rights articulated in UNDRIP.

Given the domestic and internationalcondemnation of the inadequacy of Australian ICH legislation arising from theJuukan Gorge desecration in 2020 it is apparent there is a need for thoroughreform of Australian ICH legislation to align it with contemporary internationalexpectations.

This need was recognised in the final reportof the parliamentary inquiry established to examine the Juukan Gorge Desecration.[53] Recommendation 3 of theInquiry[54] was as follows:

The Committee recommends that theAustralian Government legislate a new framework for cultural heritageprotection at the national level.

·      Thelegislation should be developed through a process of co-design with Aboriginaland Torres Strait Islander peoples

·      Thisnew legislation should set out the minimum standards for state and territoryheritage protections consistent with relevant international law (including theUnited Nations Declaration on the Rights of Indigenous People UNDRIP)…

This recommendation echoed many of thesubmissions made to the inquiry from First Nations Peoples’ organisations tothe inquiry. The Commonwealth government responded by participating in theestablishment of a partnership with a coalition of First Nations organisationsto lead the co-design process in November 2021[55]. establishing a processof co-design as recommended by the inquiry. The co-design process is expectedto lead to legislative proposals being introduced in the Australian parliamentin 2023.

Introduction of legislation is however noguarantee of its passage. Previous attempts to reform Commonwealth ICHlegislation in 1984, 1998, and 2009 were all unsuccessful. It will beinformative to ascertain to what extent the development of internationaljurisprudence regarding a right to enjoy ICH will assist in the success of thecurrent enterprise. If it does not, then one would expect the widespreadinternational outrage at the destruction of the priceless cultural heritage inJuukan Gorge to continue with greater intensity.

 


[1]Although, notably, more than two years after the desecration none of thesefunds actually divested shares in Rio Tinto and in fact the share price hasconsiderably increased.

[2] UnitedNations Declaration of the Rights on Indigenous Peoples GA/res/61/295 Ann.1 (Sept 13, 2007).

[3](Act 9 June 1978 no. 50 - Lov om kulturminner)

[4]Act 17 June 2005 No. 85 relating to legal relations and management of land andnatural resources in the county of Finnmark (The Finnmark Act) [Lov 17. juni2005 nr. 85 om rettsforhold og forvaltning av grunn og naturressurser iFinnmark fylke (fijinnmarksloven)], For a more detailed analysis of thislegislation see Øyvind Ravna, (2017) “Links between Lands, Territories,Environment and Cultural Heritage – The Recognition of Sámi Lands in Norway in Chapter”,in Alexandra Xanthaki, SannaValkonen, Leena Heinämäki, and Piia Kristiina Nuorgam (Eds), indigenousPeoples Cultural Heritage Brill, 2017,175-198.

 

[5] JanetBlake (2000), ‘On defining the cultural heritage’, International and ComparativeLaw Quarterly, (2000), Vol 49(1), 61-85.

[6]The matter is the subject of analysis in Joseph Sax (1990) ‘HeritagePreservation as a Public Duty: The Abbe Gregoire and the Origins of an Idea’, MichiganLaw Review (1990) Vol 88 pp 1142 – 1169. See also in Stuart RButzier & Sarah M Stevenson (2014) Indigenous Peoples’ Rights to SacredSites and Traditional Cultural Properties and the Role of Consultation andFree, Prior and Informed Consent, Journal of Energy & Natural ResourcesLaw, 32:3, 297-334, 301.

[7] AlexandraXanthaki (2017), ‘International Instruments on Cultural Heritage: Tales ofFragmentation’, Chapter in Alexandra Xanthaki, et al (2017) above n 4. 3.

[8] On thispoint see for example: Yvonne Donders (2016), ‘Foundations of CollectiveCultural Rights in International Human Rights Law’, Chapter (4) in AndrzejJakubowski (Ed), Cultural Rights as Collective Rights: An International LawPerspective (2016); Kimberley Alderman, (2011), ‘The human right tocultural property’, (2011), Vol 20 (1) Michigan State International LawReview, 69 – 81 particularly 73-76; Frederico Lenzerini (2016), ‘Thesafeguarding of collective rights through the evolutionary interpretation ofhuman rights treaties and their translation into principles of customaryinternational law’, Chapter (6) in Andrzej Jakubowski (Ed), Cultural Rightsas Collective Rights: An International Law Perspective 2016, 133. See also:The Committee on Economic, Social and Cultural Rights (CESR) General Comment No21 Right of Everyone to Take Part in Cultural Life (n 42) par 9. And HRComm, General Comment No 23: Article 27 (Rights of Minorities) 8 April1994.

[9]The CESRis established under International Covenant on Economic, Social and CulturalRights above n 8.

[10]Above n 8.

[11]UN High Commissioner on Human Rights (2013), Indigenous Peoples and theUnited Nations Human Rights System, Fact Sheet 9/Rev 2 https://www.ohchr.org/documents/publications/fs9rev.2.pdf

[12] ILO Convention concerning Indigenousand Tribal Peoples in Independent Countries (No. 169), 72 ILO Official Bulletin 59, concluded 27 June 1989(entered into force September 5 1991). (“ILO Convention 169”). Unlike UNDRIPthe Convention is binding on ILO members (which do not include Australia).

[13]UNHCHR above n 10, 2 citing Martinez Cobo (1986) “Study of the problem of discriminationagainst indigenous populations”, E/CN.4/Sub.2/1986/7 and Adds. 1–4. Theadditional Cobo indicia are also consistent with the conclusions of theInternational Law Association (ILA) Committee on the Rights of IndigenousPeoples – see ILA Sofia Conference 2012 Rights of Indigenous Peoples,Final Report at 2. file:///C:/Users/vici73s/Downloads/Conference%20Report%20Sofia%202012.pdf

[14]Federico Lenzerini (2016), ‘Cultural Identity, human rights and repatriation ofCultural heritage of Indigenous Peoples’, the Brown Journal of World Affairs,(2016), Vol XXIII (1), 128.

[15]A/HRC/EMRIP/2015/2, para 12.

[16] SJames Anaya, Report of the Special Rapporteur on the Situation of HumanRights and Fundamental Freedoms of Indigenous People, UN Doc A/HRC/9/9 (11August 2008) 24 [86].  See also thediscussion in Megan Davis, below n 17, 26-30.

[17] MeganDavis (2012), ‘To Bind or Not to Bind: The United Nations Declaration on theRights of Indigenous Peoples Five Years On’, (2012) 19 Australian International Law Journal 17. The paper also considersthe desirability of striving for binding status for UNDRIP.

[18]Specifically, articles 6, 7.1,8.1, 14.2, 17.1, 17.3 and 24.2.

[19]DwightG Newman (2007), ‘Theorizing collective Indigenous rights’, (2007) Vol 31(2) AmericanIndian Law Review, 273 – 289, 276.

[20]Megan Davis, above n 17, 32.

[21]Article 11 deals with ‘the right to practise and revitalize theircultural traditions and custom”

Article 12with ‘the right to manifest, practise, develop and teach their spiritual andreligious traditions, customs and ceremonies; the right to maintain, protect,and have access in privacy to their religious and cultural sites; the right tothe use and control of their ceremonial objects; and the right to therepatriation of their human remains”

Article 13with ‘the right to revitalize, use, develop and transmit to future generationstheir histories, languages, oral traditions, philosophies, writing systems andliteratures…’

Article 14with ‘have the right to establish and control their educational systems andinstitutions’.

Article 15with ‘theright to the dig­nity and diversity of their cultures, traditions,histories and aspirations’

Article25 with ‘the right to maintain and strengthen theirdistinctive spiritual relationship with their traditionally owned or otherwiseoccu­pied and used lands, territories, waters and coastal seas

Article 31 with the right to maintain, control, protect anddevelop their cultural heritage, traditional knowledge and traditional culturalexpressions, as well as the manifestations of their sciences, technologies andcultures…

[22]Joseph Sax, above n 6.

[23]Andrew Erueti, (2017) ‘The politics of international Indigenous rights’, (2017),67 (4) University of Toronto Law Journal569.

[24] Ibid, 571.

[25] Ibid, 571.

[26] AlexandraXanthaki, above n 7.

[27]Laurajane Smith, (2000), “A history of Aboriginal heritage legislation insouth-eastern Australia”, AustralianArchaeology, Number 50, (2000), 109-118

[28]The specific legislation considered is the NationalParks and Wildlife (Amendment) Act 1969 (NSW); the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic.)and Aboriginal Relics Act 1975(Tas.).

[29]Laurajane Smith, above n 27, 109.

[30]Laurajane Smith, above n 27, 111-112.

[31] Tasmanian Aboriginal Centre Inc v Secretary,Department of Primary Industries (etc.) (No 2) [2016] FCA 168.

[32]These provisions are common in ss 9 and 10 and in similar terms in s 12 in thecontext of a declaration in respect of an Aboriginal object.

[33]ATSIHPA s 22 – currently punishable by up to a 100 penalty units and 5 yearsimprisonment for an individual and 500 penalty units for a corporation.

[34]ATSIHPA s 15.

[35]ATSIHPA s 13(2).

[36]Graeme Neate, (1989), ‘Power, Policy, Politics and Persuasion – ProtectingAboriginal Heritage under Federal Laws’ (1989) Environment and Planning Law Journal, 214 – 248, 223 citing Hansard, House of Representatives 9 May1984 p 2129; Senate 6 June 1984, p 2587.

[37]Carolyn Tan, (2016), “The different concepts and structures for heritageprotection and native title laws: the nature and pitfalls of public heritageand private rights”, chapter in Pamela McGrath (ed) The Right to Protect Sites: Indigenous Heritage Protection in the Eraof Native Title, AIATSIS, Canberra 2016, 29.

[38]See Graham Atkinson and Matthew Storey, (2016), “The Aboriginal Heritage Act 2006 (Vic): a glass half full?”, chapter inMcGrath 2016 above n 64.

[39] Maboper Brennan J, 58.

[40] NTAss 29 – 39.

[41] Between 2012and 2017 the relevant dealt with over 100 applications to arbitrate the grantof a mining title because agreement could not be reached between the parties.On only two occasions has there been a determination by that the grant of amining title cannot proceed.

[42]NTA s 38(2).

[43]WAHA s 17, NTASSA s 33-36, VAHA s 28, 29, WACHA ss 92 -96.

[44]WACHA ss 109-110. The activities that constitute Tier 1 activities are (at thetime of writing) yet to be finalised in the regulations to the new Act.

[45]WACHA ss 111 -112. Similarly, the activities that constitute Tier 2 and 3activities are yet to be finalised in the regulations to the new Act althoughit is presumed that resource extraction (mining) activities will constitute aTier 3 activity. A Tier 2 activity will usually require an ACH Permit (s 113)but may instead be authorised under an ACH management plan (s 11). A Tier 3activity will require an ACH management plan (s 112).

[46] Specifically:“that the applicant will take all reasonable steps possible to avoid, orminimise, the risk of harm being caused to Aboriginal cultural heritage by theactivity” - WACHA s 120(1)(d).

[47]WACHA s 138(2)(e) and (f).

[48]WACHA s 143. If no LACHS is appointed the proponent is to attempt agreementwith the relevant native title party. An agreement under the NTA can satisfythe WACHA ACH management plan agreement provisions

[49]Defined in WACHA s 146.

[50]ALRA s 21.

[51] JosephSax, above n 6.

[52]Noting that the NTASSA and the ALRA to which it relates predated the UNDRIP.

[53] JointStanding Committee on Northern Australia, A Way Forward – Final report into the destruction of Indigenous heritagesites at Juukan Gorge Commonwealth of Australia, October 2021.

[54] Ibidp 199.

[55] https://www.dcceew.gov.au/parks-heritage/heritage/about/indigenous-heritage

 

Arctic Congress Bodø 2024

Arctic Congress Bodø 2024

First Nations Cultural Heritage Law
Natural Resource Management Law
Policy Development Consultancy

How Australian and circumpolar Arctic communities are experiencing First Nations rights in the energy sector

Offshore Wind Declared Areas

Offshore Wind Declared Areas

Policy Development Consultancy
Native Title and Land Rights

A brief exploration of the issues for Traditional Owners in offshore wind Declared Areas.