The Long Shadow Of Heritage Destruction: Fundamental Reset Of Aboriginal Cultural Heritage Protection In Australia.

Legal News & Analysis - Asia Pacific - Australia - Regulatory & Compliance - Construction & Real Estate

1 April 2021
 

What you need to know
 

  • On 9 December 2020, the Joint Standing Committee on Northern Australia released Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia - Interim Report.
     

  • A final report will be released on 18 October 2021.
     

  • The Interim Report focuses on the Juukan Gorge incident and the protection of cultural heritage in Western Australia, and leaves the broader issues relating to cultural heritage management across Australia to the final report. However, it not hard to see where the Committee is headed on the national issues.
     

  • The Interim Report recommends that the Commonwealth play a far more significant role in ensuring and enforcing standards of heritage protection across Australia, including by urgently reviewing the adequacy of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
     

What you need to do
 

  • Ensure that systems in relation to the management of Aboriginal heritage are robust – Senior management should be able to explain how it works. It must be clear who has ultimate accountability within an organisation.
     

  • Review existing processes and agreements against 'free prior and informed consent' standard. Take care when relying on heritage agreements which are not with the determined native title holders for the agreement area.
     

  • Be aware of the gap between community expectations and current laws – changed State government policy positions are likely while legislative reform process are underway.
     

  • Watch out for the release of the final report on 18 October 2021.
     

The Inquiry
 

On 9 December 2020, the Joint Standing Committee on Northern Australia released Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia - Interim Report.
 

The Committee has indicated that it will release its final report on 18 October 2021.
 

The terms of reference for the inquiry are far reaching. They extend beyond the incident to:
 

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

  • the interaction of state Indigenous heritage regulations with Commonwealth laws;
     

  • 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;
     

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

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

  • any other related matters.
     

Over 140 submissions were made and 11 public hearings were held in Canberra and WA in 2020 with additional submissions taken in 2021.
 

Summary of recommendations in Interim Report
 

The Interim Report focuses on the Juukan Gorge incident and Western Australia heritage laws while leaving the broader issues relevant to cultural heritage management across Australia to the final report.
 

However, the recommendations provide some guidance about where the Committee is headed on the national issues.
 

SUMMARY OF RECOMMENDATIONS IN INTERIM REPORT

WA government

  • Replace the Aboriginal Heritage Act with stronger legislation which (at a minimum) allows Indigenous groups to have a meaningful role in decision-making affecting their cultural heritage
     

  • Review agreements with traditional owners, and commit to ongoing regular review to ensure consistency with best practice standards.
     

  • Review final compensation clauses in agreements recognition that free, prior and informed consent requires continuous review and engagement with traditional owners.
     

  • Issue public confirmation that they will not rely on "gag clauses" or other clauses preventing Traditional Owners from exercising their legal rights in relation to cultural heritage protection and will remove these clauses from their agreements.
     

Commonwealth government

  • Legislate to prohibit "gag clauses".
     

  • Make the Minister for Indigenous Australians responsible for the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) and the National Indigenous Australians Agency the administering authority.
     

  • Vigorously prosecute breaches of the ATSIHP Act in WA.
     

  • Urgently review the adequacy of the ATSIHP Act.
     

  • Play a more active role under the ATSIHP Act, rather than deferring to state legislative processes to protect cultural heritage and using the Act as a "last resort".
     

 

Findings in relation to the WA Aboriginal Heritage Act
 

The Interim Report notes that the WA Aboriginal Heritage Act is, in practice, ineffective. It has evolved to facilitate mining operations, rather than protecting cultural heritage. The Interim Report recommends that the WA Government replace the Aboriginal Heritage Act with stronger heritage protections as a matter of priority, noting the progress already made in consultation on the draft Aboriginal Cultural Heritage Bill 2020 (WA).
 

It recommends that any new legislation ensure that Aboriginal people have meaningful involvement in and control over heritage decision making, in line with the internationally recognized principle of free, prior and informed consent. It should also include a prohibition on agreements which seek to restrict Traditional Owners from exercising their rights to seek protections under State and Commonwealth laws (i.e. "gag clauses").
 

Themes relating to agreement making with Indigenous groups
 

"Free, prior and informed consent" is the cornerstone of the Interim Report
 

The Interim Report repeatedly refers to the concept of "free prior informed consent" (or "FPIC") in agreement making with Traditional Owners.
 

FPIC is a creature of international law and is embodied in several international legal instruments. We discuss the meaning, origins and application of FPIC in our article Free, Prior and Informed Consent.
 

The Interim Report observes that best practice for mining companies involves:
 

  • undertaking comprehensive heritage surveys before entering agreements with Indigenous groups;
     

  • continuously consulting with groups to facilitate free, prior and informed consent; and
     

  • periodically reviewing existing agreements with Indigenous groups.
     

The concept of FPIC in cultural heritage and native title agreement making creates tension with both the right to negotiate process in the Native Title Act 1993 (Cth) and some cultural heritage legislation. Expect more on this in the final report.
 

Gag clauses to go
 

The Interim Report uses the term "gag clauses" to refer to conditions in agreements between mining companies and Traditional Owners that prevent Traditional Owners from exercising their rights under cultural heritage laws.
 

The Interim Report recommends that mining companies operating in WA publicly confirm that they will not rely on gag clauses and remove these clauses from their agreements. It recommends that the WA and Federal Government legislate to prohibit such clauses in future agreements. It is likely that the final report will make similar recommendations about gag clauses in other jurisdictions.

 

Best practice standards for agreement making have not been defined
 

The Interim Report refers to agreements needing to meet and implement "best practice standards". The Interim Report provides no guidance about what they have in mind. Stakeholders will have to wait for the final report for further details about this recommendation. There is a risk if the final report recommends a "one size fits all" approach, bearing in mind the significant differences between the subject matter of agreements around the country.

 

Recommendations about legislative reform
 

The ATSIHP Act and the EPBC Act
 

The Interim Report recommends that the Commonwealth urgently review the adequacy of the ATSIHP Act and play a more active role under the ATSIHP Act, rather than deferring to state legislative processes to protect cultural heritage and using the Act as a "last resort".
 

It also supported the findings of the June 2020 Interim Report by Professor Graeme Samuel AC into the EPBC Act as they relate to Indigenous heritage protection. The Samuel Interim Report concluded that the current laws that protect Indigenous cultural heritage in Australia need comprehensive review and highlighted the uneasy interaction between the two pieces of Commonwealth legislation intended to address heritage protection – the EPBC Act and ATSIHP Act.
 

SHORTCOMINGS IN THE PROTECTIONS PROVIDED UNDER THE EPBC AND ATSIHP ACTS

Shortcomings in the protections provided under the EPBC and ATSIHP Acts
 

There have been very few protection declarations made under the ATSIHP Act, and only a small number of sites added to the National Heritage List under the EPBC Act primarily for their Indigenous values.
 

This demonstrates how rarely these Acts are used to protect Indigenous cultural heritage in practice.
 

The ATSIHP Act does not work effectively with the EPBC Act, instead providing "last minute protection" of cultural heritage which is frustrated by confusion among stakeholders about legal and administrative processes.
 

The inadequacies of the ATSIHP Act have been examined pretty thoroughly in three Commonwealth inquiries in the past few months – the Senate Committee's Interim Report, the EPBC Act Review Final Report and the Productivity Commission's Study Report on Resource Sector Regulation published in December 2020.
 

 

State and Territory legislation
 

The Interim Report notes that a large number of issues have been raised in relation to State and Territory cultural heritage legislation and states that the Committee will need most of 2021 to address and consider those issues.
 

Snapshot of recommendations of related Reviews
 

This recommendation is echoed in two additional reports published at similar times to the Interim Report.
 

FINAL REPORT IN THE INDEPENDENT REVIEW OF THE ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION ACT 1999 (CTH)

The Final Report of Professor Graeme Samuel AC's independent review of the EPBC Act was released to the public on 28 January 2021.
 

The Final Report identifies fundamental inadequacies in the EPBC Act. The Report's criticism of the Act extended to its operation as regards both the role of Indigenous Australians in protecting and conserving biodiversity, and the protection of Indigenous cultural heritage.
 

Enforceable National Environmental Standards are recommended, including a standard for Indigenous engagement and participation in decision making.
 

Immediate and comprehensive law reform in the area of Indigenous cultural heritage protection is flagged as a major priority for reform by the Final Report.
 

 

PRODUCTIVITY COMMISSION NOVEMBER 2020 REPORT: RESOURCE SECTOR REGULATION

The Productivity Commission released a report in November 2020 entitled Resource Sector Regulation, the day after the Senate Committee released its Interim Report into the Juukan Gorge incident.
 

It is broadly consistent with both the Senate Interim Report and the recommendations of the Independent Review of the EPBC Act, as it relates to Indigenous cultural heritage and Indigenous stakeholders.
 

The Report identifies major shortcomings in the current approaches to regulation of Aboriginal heritage protection at a state and national level and recommends a comprehensive review of the role of the Commonwealth in heritage regulation and of the ATSIHP Act.

 

Where to from here for the Inquiry?
 

The Committee received submissions from most jurisdictions across the country, although its Interim Report focuses largely on Western Australia. Going forward, the Committee intends to expand its consultation to include all other jurisdictions, with a view to creating a consistent approach to cultural heritage protection across Australia.
 

In its final report, the Committee will review the Native Title Act agreement-making process (with particular focus on the issues of free, prior and informed consent and gag clauses).
 

Further, the Committee will consider reform options for the ATSIHP and EPBC Acts, including:
 

  • whether state laws should continue to enjoy primacy over Commonwealth legislation; and
     

  • whether federal cultural heritage protection should be dealt with entirely under the EPBC Act; or, alternatively, whether there should be stronger, standalone cultural heritage legislation at the federal level which could support and provide a benchmark for state legislation.
     

A fundamental reset of cultural heritage protection practices across Australia
 

The Interim Report notes that:
 

Corporate Australia can no longer ignore the link between its social licence to operate and responsible engagement with Indigenous Australia.
 

Institutional investors have also begun to take a closer look at how companies manage their relationships with Traditional Owners. The Interim Report finds that there is a clear public expectation that companies will reform their practices and that Governments will enforce higher standards of respect for heritage and culture.
 

We recommend that resource companies and other businesses which have a major impact on land across Australia:
 

  • review their policies and procedures with regard to cultural heritage protection and management - senior management should be able to explain how it works;
     

  • review existing processes and agreements against 'free prior and informed consent' standard;
     

  • be aware of the gap between community expectations and current laws – simply relying on compliance may not be enough.
     

Insights
 

Many of the matters addressed in the Interim Report go beyond the terms of reference. These matters include further reform of the Native Title Act, the funding for native title prescribed bodies corporates and the idea that mining companies might be required to actively support and fund cultural heritage mapping and truth telling initiatives.
 

Some of the recommendations in the Interim Report are akin to policy directives, including suggestions to companies about how they should operate, but others will require legislative change at a State and Federal level.
 

The Interim Report refers to mining companies, but the recommendations can equally apply to other companies that deal with land, e.g. pipeline companies, infrastructure and public utilities providers and Government. The cultural heritage regime in each State does not distinguish between mining companies and other types of land users.
 

The Interim Report looks at cultural heritage solely through the lens of the Juukan Gorge incident, and does not acknowledge the vastly different types of Aboriginal cultural heritage objects and places around Australia. The Interim Report is silent on intangible cultural heritage, particularly spiritual aspects. It also seems to treat heritage and native title agreements as if they were indistinguishable.
 

Nevertheless, the Interim Report's recommendations are having a big impact and the final report promise to be at least as influential.
 

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For further information, please contact:

 

Clare Lawrence, Partner, Ashurst
[email protected]