Journal of the Australian Association Journal of the Australian Association of Consulting Archaeologists, Issue 1, 2013: 1-10 of Consulting Archaeologists Volume 4 (Supplement), 2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx Aboriginal Heritage Law Reform in NSW: ‘no future’? STEVE BROWN Steve Brown (University of Sydney, steve.brown@sydney.edu.au) In its simplest form, a law or policy reform process requires a problem, an agreed position (or ‘solution’), and political will. The New South Wales (NSW) Aboriginal Heritage Law Reform Process lacks both an agreed position and political will, despite laudable intentions by government, Aboriginal groups, archaeologists and heritage practitioners. After seven years, there is no agreed model for stand-alone Aboriginal cultural heritage legislation and, using the issue of ‘who speaks for Country’ as a stalling mechanism, there is no ‘reform’. In this paper, I background the rocky road to no reform and touch on three of many stumbling blocks: a failure to conceptualise the nature of NSW’s Aboriginal heritage, poorly framed and implemented consultation processes, and a pervasive attitude of anti-intellectualism. Until these matters are thoughtfully and effectively addressed, the road to reform will be long and winding, destination unknown. Introduction In 2010, the NSW Constitution was amended to acknowledge and honour Aboriginal people as the state’s first people and nations. In the same year, the NSW Labor Government committed to the development of stand-alone Aboriginal cultural heritage legislation. This commitment, supported by both major parties in the then NSW State Parliament, was a response to calls from Aboriginal people to remove Aboriginal heritage management provisions from the NSW National Parks and Wildlife Act 1974. These provisions, it was argued, equated Aboriginal people with the plants and animals of NSW, echoing colonial constructions of Aboriginal people as part of the faunal assemblage of the State (NSW Aboriginal Land Council 2010: 5). Thus, in 2010, Aboriginal communities and the Parliament were of the same opinion: separate Aboriginal heritage legislation was a necessary and powerful anti-colonial symbol and empowering action. More than seven years on (September 2016) there has been no delivery on the February 2010 commitment. Politics has and continues to play a role in this failure. For example, on 4 September 2014 the Hon. Mark Speakman, Minister for the Environment, Minister for Heritage, and Assistant Minister for Planning, raised the issue of ‘who speaks for Country’ as a reason for the delay in progressing the Aboriginal law reform process. In response to questioning, Minister Speakman stated: In September 2013 the Government released a proposed model for stand-alone Aboriginal cultural heritage legislation. We subsequently had extensive consultation. Yes, there has been a delay, but at the end of the day it is more important to get things right than to cut corners. This area is extremely sensitive. There are difficult issues. One difficult issue is who speaks for country. This is answering your question because I am explaining why it has taken this time. One issue we will have to grapple with is who speaks for country. We Article History: Received 11/05/2016, Accepted 15/09/2016, Published 01/11/2016 Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx exhibited a model in 2013, where we tried to have traditional owners do that. As I understand it, the New South Wales Aboriginal Land Council, among others, preferred a model where the land councils are the interlocutors, if you like. That is a difficult issue to resolve. It is a sensitive issue and we want to take the time to do it properly. At the end of the day, we want to get the right answer rather than cut corners and end up in the wrong spot because we are more interested in expediency than a good outcome.1 Equally, and beyond stalling and evasion within the arena of State politics, there have been shortcomings within the public-sector administration of the NSW legislative reform process. That is, the NSW Office of Environment and Heritage (OEH), responsible for overseeing the reform process, has, in my view, shown a lack of leadership and capacity to advocate for legislative change. In this paper, I draw on public information and personal knowledge, experience, and perceptions of the legislative reform process. In the period 2010 to 2013, I was employed as a Cultural Heritage Researcher within the OEH, during which time I periodically undertook research, developed public information and participated in consultation processes as part of the NSW Aboriginal heritage law reform process. My critiques centre on failures to conceptualise the nature of NSW’s Aboriginal material heritage, the inadequate conception and implementation of face-to-face consultation workshops, and the anti-intellectualism of the reform process. While my arguments might be dismissed as ‘embittered ex-employee syndrome’, my concern (in Latourian terms) is to highlight problems within government that have served to complicate and destabilise the genuine and broadly agreed commitment in 2010 for 1 General Purpose Standing Committee No. 5. 4 September 2014. Examination of proposed expenditure for the portfolio areas – The Environment, Heritage. Available at: https://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/ 2507420d743bce8aca257eb90002994f/$FILE/150904%20UNCOR RECTED%20-%20Environment%20Heritage%20(Speakman).pdf [1 December 2015] stand-alone Aboriginal heritage legislation for NSW. While there is a need for both getting it right (to reference Minister Speakman) and getting it done, the former is not a credible reason for failing to achieve the latter. A background to Aboriginal heritage legislation in NSW Although there is a history of calls in NSW for legislation to preserve and protect ‘Aboriginal sites’ dating back to 1889, it was not until 80 years later that legal protection commenced (Table 1). The initial legislation, the NSW National Parks and Wildlife (Amendment) Act 1969, incorporated provisions for the blanket protection of all Aboriginal ‘relics’ (objects and sites). The Amendment was driven by a desire to halt the private collecting of Aboriginal ‘relics’, in particular stone artefacts and human remains from surface and buried contexts. It is notable for its failure to make mention of the living Aboriginal people of NSW and their culture. The framing was of course typical of its time and similar contemporary ‘relics’ legislation, but not congruent with present day views on the continuity between Aboriginal heritage and the State’s living Aboriginal culture (Byrne 2013). Although Aboriginal heritage management after 1969 initially focused on what heritage practitioners would now frame as archaeological or scientific values of Aboriginal heritage places, things soon changed. In particular, the National Parks and Wildlife Service’s (NPWS) Sites of Significance Survey (1973-83), instigated by Sharon Sullivan and led by anthropologist Howard Creamer and Aboriginal researcher/activist Ray Kelly, documented aspects of the ‘living heritage’ of Aboriginal people in NSW (Kijas 2005). The survey recorded deep time storied places (including ‘sacred sites’) as well as post-contact places such as missions, cemeteries, and fringe camps. As a consequence of this work, the revised NSW National Parks and Wildlife Act 1974 made provision for the gazettal of ‘Aboriginal Places’: that is, ‘places of special significance with respect 2|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx to Aboriginal culture’. This provision was the first recognition of the idea of intangible heritage, whether Indigenous or non-Indigenous, in NSW heritage legislation. Despite the work of the Sites of Significance Survey, the 1970s and 1980s in NSW are notable for the privileged position given to archaeology and regulatory regimes that relied heavily on archaeological expertise. During this period, Australian legislatures for the most part evolved quite robust and efficient regulatory systems that were archaeologically based – including development impact assessment and permitting systems. The period is also notable for the formulation, by Australia ICOMOS, of the first iterations of the Burra Charter, notable for its inclusion of the phrase ‘places of cultural significance’ and adoption of the concept of ‘social value’. During the 1980s, the NSW Aboriginal Land Rights Act 1983 led to the establishment of a network of Local Aboriginal Land Councils (or LALCs) across NSW. The legislation provided for LALCs to protect and promote awareness of Aboriginal culture and heritage. Today the LALC network comprises 120 councils divided into nine regions. The 1990s was the decade when Native Title was recognised by Australia’s High Court, Aboriginal co-management of national parks was enabled, and the Australian Government established its Indigenous Protected Areas program. It was also during this period that the NSW Government, whilst retaining a largely archaeological definition of Aboriginal heritage in legislation, began to adopt a broader view of Aboriginal heritage in its policies and practice, as well as using language that recognised and respected the importance of cultural heritage to Aboriginal communities. During the 2000s, Aboriginal heritage gained further prominence within the NSW Government as Aboriginal people increasingly occupied senior management roles and Aboriginal heritage and culture was integrated into a State-wide, government-led program titled Two Ways Together (2003-2013) that aimed to improve quality of life for Aboriginal people and their communities. From the mid-1970s, there has been a long and complex history of calls for reform of the NSW Aboriginal heritage legislation (NSW Aboriginal Land Council 2010; OEH 2010). The most notable attempts relate to the work of the NSW Select Committee of the Legislative Assembly upon Aborigines (the Keane Committee; 19781981), established by the Wran Labor Government in 1978; and the NSW Aboriginal Cultural Heritage Working Group (1993-1996) established by the Fahey Liberal Government. Few of the foremost recommendations of these committees were supported or implemented. After 2010: the promise of ‘stand-alone’ Aboriginal heritage legislation for NSW In February 2010, the NSW Labor Government committed to the development of stand-alone legislation for Aboriginal cultural heritage (ACH), promising delivery within a two-year period. To summarise events from 2010, three chronological phases can be identified. Phase 1: Beginnings In October 2011, the NSW Liberal Government established an Aboriginal Culture and Heritage Reform Working Party. It comprised ‘a group of experts who will advise the Government on options for stand-alone legislation to manage and protect Aboriginal culture and heritage in NSW’ (OEH 2011: Minister’s foreword; OEH 2012c: 31). The working party initially proposed the following reform timetable: (1) initial community and stakeholder engagement and consultation (three months); (2) collation of feedback and development of an options paper (three months); (3) second community and stakeholder engagement and consultation on options paper (three months); and (4) Working Party to provide report and recommendations to Minister (September 2012). The first stage engagement and consultation process (November-December 2011) comprised 3|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx 26 regional Aboriginal community workshops (attended by 340 Aboriginal people) and five roundtables for industry, government and environmental and heritage interest groups (120 attendees) (OEH 2012c). Consultation focused on: defining Aboriginal culture and heritage; managing Aboriginal culture and heritage; ownership of Aboriginal culture and heritage; speaking for Country; land-use planning and development processes; and natural resource management processes. In advance of the consultation process, a comprehensive background research report (Brown et al. 2011) was prepared though, as discussed below, it was never made publicly available. Phase 2: A revised law reform process In late 2011, as the initial consultation phase was occurring, the NSW Liberal Government announced a revised law reform process. The first Reform Working Party was disbanded and a second Working Party was constituted in May 2012 (Laing & Stanford 2015: 89; OEH 2013a: 1). In June/July 2012, 11 regional feedback forums took place to communicate the findings of the first stage consultation process and, in response to Aboriginal community requests, to deliver information on Aboriginal heritage legislation (OEH 2012a, b). The second Working Party developed and provided to the NSW Government a report and recommendations at the end of 2012. The report was published as a discussion paper in September 2013 (OEH 2013a). In its published discussion paper, the Working Party made 23 recommendations that sought ‘a fair and equitable balanced model for all stakeholders involved in the process’. There were six key recommendations: new stand-alone ACH legislation; a new administrative structure; processes to consider Aboriginal cultural heritage early in the planning processes; local decisions by local people; streamlined conservation and regulation processes; and funding for conservation outcomes. Phase 3: A model for new legislation proposed In October 2013, in response to the discussion paper, as well as previous public feedback, the NSW Government issued a proposed model for stand-alone ACH legislation (OEH 2013b). The model proposed an administrative structure based on the existing LALC network as a basis for local ACH decision making, including requirements for LALCs to prepare and implement valuesbased ‘Community Land and Business Plans’ that were to incorporate maps identifying areas of high, low and no ACH value. The model was the subject of a third consultation process (November 2013 to March 2014). Nineteen public workshop sessions were held throughout NSW and additional feedback from this process comprised 147 written submissions and 67 completed questionnaires. 2 In general, there was disagreement concerning the LALC framework model, opposition to the preparation of significance-based mapping products, and a concern that mandatory timeframes were unnecessarily short. Since the completion of that consultation process there have been no public announcements or information concerning ‘next steps’ (Laing & Stanford 2015: 89). Except of course for Minister Speakman’s furphy to ‘get things right’.3 A critique: concept, consultation, and anti-intellectualism In this section, I touch on three critical issues in the ACH law reform process. There are of course many other issues in the complex arena of Aboriginal heritage management, but I choose these ones because I am able to draw on knowledge and personal experience, as well as published literature, in discussing them. 2 Available at: <http://www.environment.nsw.gov.au/achreform/ACHsubmission.ht m>. [20 September 2016] 3 A furphy is Australian slang for a rumour, or an erroneous or improbable story, but usually claimed to be absolute fact. 4|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx Conceptualising the Aboriginal heritage of NSW When the NSW Parliament passed the National Parks and Wildlife (Amendment) Act 1969 and thereby afforded ‘blanket protection’ to all Aboriginal material remains across NSW, the legislators were likely unaware of how many Aboriginal ‘sites’ actually existed in the state (Brown et al. 2011: 12; Smith 2000: 114; K Sullivan 1986). The number of ‘sites’ currently registered on the NSW Aboriginal Heritage Information Management System exceeds 60,000, a figure that would have seemed unimaginable to parliamentarians and archaeologists in the 1960s. The notion of ‘sites’ has long been pervasive in archaeological theory and practice and, from the 1960s, sites as discrete assemblages of material traces of past human presence entered into Australian Aboriginal heritage legislation. By contrast, the Aboriginal English concept of ‘Country’ has become increasingly recognised for its whole-of-landscape meaning. For contemporary Australian Aboriginal people, the concept of ‘caring for Country’ is a complex notion related both to personal and group belonging and to maintaining and looking after the ecological and spiritual wellbeing of the land and of oneself. Caring for Country in Aboriginal cosmology is a phrase encompassing all parts of the landscape and seascape, as well as people and non-human species. Within the meaning of Country, the idea of ‘sites’, where it exists, is but a small part of a bigger cosmological whole. The point I am making here is that ACH is Country for most Aboriginal people and communities. It is an Aboriginal perspective on heritage value neither encompassed by NSW Aboriginal heritage legislation nor adequately incorporated into NSW’s heritage management system. The history of valuing Indigenous stone artefacts provides a useful illustration of changing ideas of heritage and the dynamism of contemporary Aboriginal heritage. Ethnographic and ethnoarchaeological research (e.g. McBryde 1978) has shown how stone tools were widely ascribed both intangible and functional meanings by Aboriginal people at the time of European settlement. Increasingly over the nineteenth and early to midtwentieth centuries, Aboriginal cultural knowledge concerning stone artefacts lessened and changed as access to stone sources and the use of stone artefacts diminished. By the 1970s, when the field of commercial or developer-driven archaeology was expanding in south-east Australia, Aboriginal people engaged in the field retained little (though still some) ‘traditional’ information on the use and meanings of stone artefacts. This placed Aboriginal people in the uncomfortable position of having the technical aspects of stone artefacts, their heritage, ‘explained’ to them by non-Indigenous archaeologists. Over the following decades this situation both continued and changed markedly. Initially Aboriginal people acquired the technical language of archaeology to describe and discuss stone artefacts (i.e., they learned to talk-the-talk) and thus the ability to participate in the dominant discourse of NSW ACH. Equally, Aboriginal connection to stone objects took on contemporary social meanings (i.e., artefacts became significant as material proof and affective markers of the presence of ancestors) and spiritual ties (i.e., able to transmit ‘special feelings’ connected with familial ancestors and ‘power’ associated with find locales). (see Byrne 2013; Harrison 2004: 198-200) In my experience, these new and powerful social and spiritual meanings ascribed and experienced by Aboriginal people are rarely recognised in heritage practice (e.g., OEH 2013c; Queensland Museum 2011), and were never acknowledged in the NSW ACH law reform process. That is, material traces of past Aboriginal presence, and especially stone artefacts, have continued to be viewed in the legislative reform process as ‘archaeological’ and thus distinct and separate in their materiality (not only values) from Aboriginal ownership (and valuing). By failing to conceptualise the nature of NSW’s Aboriginal heritage as Country enlivened by affective things, 5|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx the ACH law reform process will continue to be challenged in gaining Aboriginal community support. Design and implementation consultation processes of The three phases of community participation applied during the NSW ACH law reform process included a series of face-to-face ‘consultation’ workshops, meetings and forums. These events, enacted as part of the ACH law reform process, were well intended (and moderately well attended) but, from my experience, poorly conceived, executed, documented and synthesised (e.g. evident in OEH 2012c). My experience is also reflected in similar concerns expressed by the NSW Aboriginal Land Council (2014: 11-12). In large part, I suggest, this is because the consultation process and face-to-face events were only ever framed as ‘consultation’. Consultation in Sherry Arnstein’s ‘ladder of citizen participation’ is a form of tokenism (Arnstein 1969; Johnston & Buckley 2001). For Arnstein, Inviting citizens' opinions, like informing them, can be a legitimate step toward their full participation. But if consulting them is not combined with other modes of participation, this rung of the ladder is still a sham since it offers no assurance that citizen concerns and ideas will be taken into account. The most frequent methods used for consulting people are attitude surveys, neighborhood meetings, and public hearings. When powerholders restrict the input of citizens' ideas solely to this level, participation remains just a window-dressing ritual. (Arnstein 1969:219) Within its own document on Working with Aboriginal People and Communities, the NSW Government (2009: 31) makes a distinction between a consultation process (‘used to seek information, advice or an opinion, permission or approval for a proposed action’) and a negotiation process (‘used to confer with others in order to reach a compromise or agreement’). At no stage was the ACH law reform process articulated as ‘negotiation’, and consequently no authority was conferred to, or real power shared with, Aboriginal community members being consulted. In this respect the process was top-down, controlled by the Minister, senior government bureaucrats and, to an unknown extent, the members of the Aboriginal Culture and Heritage Reform Working Party. The process stands in contrast to notions of genuine engagement, as defined by Janet Hunt, Engagement requires a relationship built on trust and integrity: it is a sustained relationship between groups of people working towards shared goals; on the spectrum of engagement, a high level of participation works better than lower levels (such as consultation) where problems are complex. (Hunt 2013: 1) Finally, the level of consultation applied in the law reform process, and anticipated by the NSW Government proposed model, has been questioned with regard to compliance with Article 18 of The United Nations Declaration on the Rights of Indigenous People, to which Australia is a signatory (Hunt 2014; NSW Aboriginal Land Council 2014). The role of research As part of the governmental approach to the ACH law reform process, a 250-page research paper (Brown et al. 2011) was produced that described and compared the situation of Indigenous heritage legislation and management in different Australian and overseas jurisdictions (New Zealand and Canada). The paper’s purpose was to serve as a resource document for the Aboriginal Culture and Heritage Reform Working Party as well as for community members seeking to gain a comprehensive historical background to and key trends in Aboriginal heritage management in Australia. The paper was compiled over a threemonth period by five government-based researchers in advance of the 2011 community and stakeholder engagement and consultation process. Various summaries of the report were 6|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx subsequently prepared (OEH 2012a, b), though the report was never made public. The exact reasons are unclear, though at the time there was considerable discussion concerning: (1) the report’s acknowledgement of the communitybased approach to Indigenous heritage evident in ‘second-wave’ Queensland and Victorian legislation as well as approaches adopted in New Zealand and Canada, and (2) recognition of the need to take account of the principles of Native Title (again as in the Queensland and Victorian legislation). While the reasons for withholding the resource document are uncertain, my experience then and feelings now are of an over-riding antiintellectualism in the administration of the ACH law reform process. There seemed to be an obsessive desire to ‘keep it simple stupid’ (the KISS principle) and a seemingly perverse characterisation of all community members as unable or unwilling to engage in informed debate. In addition, many of the materials published on the NSW Government webpages adopt a generic rhetoric of ‘real protection’, ‘broader approach’, ‘stronger voice for Aboriginal people’, ‘better integration’, ‘consistency of process’, ‘best practice’, ‘Government efficiency’, etc, none of which is underpinned by evidence-based critical discussion. The effect of this discourse has been to obscure and complicate effective community engagement with practical and workable arrangements concerning new Aboriginal heritage legislation. I argue that without well-researched materials that judiciously analyse approaches and lessons from other jurisdictions, informed discussion and debate is smothered when attempting not to rock the political boat. ‘No future’? At various points in the Aboriginal law reform process, commentary has circulated arguing that the archaeological regulatory system is functional and consequently should be fundamentally retained. In this view, reform is about bolstering Aboriginal participation and ensuring recognition of cultural values alongside ‘scientific’ or archaeological value. And therein lies a position that would perpetuate a situation that has existed in NSW Aboriginal heritage legislation since 1974; that is, a notion of sharing authority between archaeological and Aboriginal expertise. In my view, it is not enough to bring Aboriginal community values into new Aboriginal heritage legislation. Rather, true reform can only be achieved when the rhetoric of custodianship and ownership is made real and Aboriginal people recognised as the relevant experts and most qualified to manage or curate objects and Country. Such a situation is not incompatible with archaeological investigation. For example, work by Shelley Greer (2010) shows that archaeologists open to the more-than-secular meaning of shell middens, and landscape and Country more generally, can work within a framework in which local values and archaeology are ‘interactive’. Following this example, power is gained in undertaking archaeological work when Aboriginal communities are empowered. Perhaps it might be best to finish with reference to the Sex Pistols, who famously screamed from vinyl that the English monarchy has ‘no future’. Unless things change in terms of political will and an agreed legislative approach, nor it seems does the seven-year long NSW Aboriginal heritage law reform process. Acknowledgements I thank the editors of this volume for inviting me to present at the 2015 Australian Archaeology Association workshop on ‘Cultural Heritage Management and Law in Australia’ and to develop the presentation into a paper. I also recognise and express my appreciation to colleagues who have shaped and influenced my thinking about the NSW law reform process, including Denis Byrne, Caroline Ford, Emma Dortins and Alex Roberts, though none have read or contributed directly to drafts of this paper. I thank Caroline Bird and Jim Rhoads for review comments on a draft of the paper, which have considerably improved the final version. Any 7|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx errors of fact or vagaries of meaning remain my own. References Arnstein SR 1969, ‘A ladder of citizen participation’ Journal of the American Planning Association 35(4): 216-24. Brown S, D Byrne, E Dortins, C Ford & A Roberts 2011, ‘Aboriginal heritage in perspective: a comparative review of legislation and management regimes in Australia and beyond’, a report prepared by Office of Environment and Heritage. Unpublished. Available from Office of Environment and Heritage (NSW), Hurstville. Byrne D 2013, ‘Difference’ in The Oxford handbook of the archaeology of the contemporary world, eds P Graves-Brown, R Harrison & A Puccini, Oxford University Press, Oxford, pp. 289-305. Greer S 2010, ‘Heritage and empowerment: community-based Indigenous cultural heritage in northern Australia’ International Journal of Heritage Studies 16(1-2): 45-58. Harrison R 2004. Shared landscapes: archaeologies of attachment and the pastoral industry in New South Wales, UNSW Press, Sydney. Hunt J 2013, Engaging with Indigenous Australia—exploring the conditions for effective relationships with Aboriginal and Torres Strait Islander communities. Issues paper no. 5. Produced for the Closing the Gap Clearinghouse. Canberra: Australian Institute of Health and Welfare & Melbourne: Australian Institute of Family Studies. Available from: <http://www.aihw.gov.au/uploadedFiles/ClosingTheGap/Conte nt/Publications/2013/ctgc-ip5.pdf>. [20 September 2016]. Hunt J 2014, NSW cultural heritage reform: does the proposed model reflect the United Nations Declaration on the Rights of Indigenous Peoples? Indigenous Law Bulletin 8(10): 15-18. Available from: <http://www.austlii.edu.au/au/journals/ILB/2014/4.html>. [20 September 2016]. Johnston C & K Buckley 2001, ‘Communities: parochial, passionate, committed and ignored’ Historic Environment 15(12): 88-96. Kijas J 2005, Revival, renewal & return: Ray Kelly & the Sites of Significance Survey, Department of Environment and Conservation (NSW), Hurstville. Available from: <http://www.environment.nsw.gov.au/nswcultureheritage/Reviv alRenewalReturn.htm >. [20 September 2016] Laing N & K Stanford 2015, ‘Aboriginal cultural heritage: Aboriginal cultural heritage law: A long road to reform’ Law Society of NSW Journal [online] 14: 88-89. Available from: <http://search.informit.com.au/documentSummary;dn=3884084 16292910;res=IELAPA>. [20 September 2016]. McBryde I 1978, Records of times past: ethnohistorical essays on the culture and ecology of the New England tribes, Australian Institute of Aboriginal Studies, Canberra. NSW Aboriginal Land Council 2010, Our Sites, Our Rights. Returning control of Aboriginal sites to Aboriginal communities: A summary of key recommendations of past Aboriginal heritage reviews in NSW. Policy and Research Unit, NSW Aboriginal Land Council, Parramatta. NSW Aboriginal Land Council 2014, Submission to the NSW Government: Reforming Aboriginal Cultural Heritage and Heritage Laws in NSW. Available from: <http://www.alc.org.au/media/89364/140402%20NSWALC%2 0submission%20Aboriginal%20Culture%20and%20Heritage% 20Reform%20FINAL%20.pdf>. [20 September 2016]. NSW Government 2009, Working with Aboriginal people and communities: a practice resource. Available from: http://www.community.nsw.gov.au/docswr/_assets/main/docum ents/working_with_aboriginal.pdf. [20 September 2016]. Office of Environment and Heritage (OEH) 2010, Aboriginal heritage legislation in NSW: reform milestones 1969-2011, NSW Government, Sydney South. Available from: http://www.environment.nsw.gov.au/resources/cultureheritage/1 10492milestones.pdf. [20 September 2016]. Office of Environment and Heritage (OEH) 2011, Aboriginal heritage legislation in NSW: public consultation for reform, NSW Government, Sydney South. Available from: http://www.environment.nsw.gov.au/resources/cultureheritage/1 10391issues.pdf. [20 September 2016]. Office of Environment and Heritage (OEH) 2012a, Aboriginal heritage legislation in NSW: how the Aboriginal heritage system works, Sydney South: NSW Government. Available from: <http://www.environment.nsw.gov.au/resources/cultureheritage /20120401system.pdf >. [20 September 2016]. Office of Environment and Heritage (OEH) 2012b, Aboriginal heritage legislation in NSW: comparing the NSW Aboriginal heritage system with other Australian systems, Sydney South: NSW Government. Available from: <http://www.environment.nsw.gov.au/resources/cultureheritage /20120402comparison.pdf >. [20 September 2016]. Office of Environment and Heritage (OEH) 2012c, Aboriginal heritage legislation in NSW: phase 1 consultations – summary of feedback, Sydney South: NSW Government. Available from: <http://www.environment.nsw.gov.au/resources/cultureheritage /20120403phase1feedback.pdf> [20 September 2016]. Office of Environment and Heritage (OEH) 2013a, Reforming the Aboriginal cultural heritage system in NSW: draft recommendations to the NSW Government. A discussion paper, NSW Government, Sydney South. Available from: <http://www.environment.nsw.gov.au/resources/cultureheritage /20130139achrefdiscussion.pdf> [20 September 2016]. Office of Environment and Heritage (OEH) 2013b, Reforming the Aboriginal cultural heritage system in NSW: a NSW Government model in response to the ACH Reform Working Party’s recommendations and public consultation, NSW Government, Sydney South. Available from: http://www.environment.nsw.gov.au/resources/cultureheritage/2 0130760achrefgov.pdf . [20 September 2016]. Office of Environment and Heritage (OEH) 2013c, Stone tools. Available from: <http://www.environment.nsw.gov.au/nswcultureheritage/Stone Tools.htm> [20 September 2016]. Queensland Museum 2011, Stone artefacts: fact sheet. Available from: <http//www.qm.qld.gov.au/~/media/Documents/Learning+reso urces/QM/Resources/Fact+Sheets/fact-sheet-stoneartefacts.pdf>. [20 September 2016]. Smith L 2000, ‘A history of Aboriginal heritage legislation in southeastern Australia’ Australian Archaeology 50: 109-118. Sullivan K 1986, ‘Negotiation, game theory and cultural resource management’ Australian Archaeology 22: 36-44. Sullivan S 1996, ‘Reflexions of 27 years’ Tempus 6: 1-11. 8|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): xx-xx 1889 Robert Etheridge (1847-1920), palaeontologist and ethnologist at The Australian Museum (Sydney), calls for preservation of Aboriginal sites in NSW. No reference is made to contemporary Aboriginal people or of any association between them and these remains. 1913 Crown Lands Consolidation Act of 1913 provides for the creation of special reserves for Aboriginal art sites in NSW. Few were created. 1939 Fred McCarthy (The Australian Museum) submits draft Aboriginal ‘relics’ legislation to NSW Parliament. No action taken. 1960s The focus of Aboriginal heritage management is archaeological research and documentation of pre-contact archaeological sites. 1967 NSW National Parks and Wildlife Act 1967 enacted. No Aboriginal heritage provisions. 1968 Conference on Prehistoric Monuments and Antiquities in Canberra, which views Aboriginal cultural heritage as mainly the province of archaeology. 1969 National Parks and Wildlife (Amendment) Act 1969. The beginning of legal protection for Aboriginal ‘relics and sites’ in NSW. 1970 Establishment of an Aboriginal Sites Unit within NPWS, which immediately begins building an Aboriginal Sites Register. 1972 Development-related archaeological surveys begin with the Moomba to Sydney natural gas pipeline project. 1973 Commencement of the NPWS Sites of Significance Survey (1973-1983) by Anthropologist Howard Creamer and a team of Aboriginal researchers led by Ray Kelly. 1974 NSW National Parks and Wildlife Act 1974. Provision for gazettal of Aboriginal Places: places of ‘special significance with respect to Aboriginal culture’, including where no ‘relics’ are present. 1976 NPWS requires archaeologists to consult Aboriginal communities in regard to ‘consent to destroy’ applications. (S Sullivan 1996: 4) 1979 Australia ICOMOS Burra Charter adopted. NSW Environmental Planning and Assessment Act (EPA) formalised the requirement that development proponents carry out investigation to identify Aboriginal sites subject to impacts. 1983 NSW Aboriginal Land Rights Act 1983. Leads to the establishment of a network of Local Aboriginal Land Councils throughout NSW. 1992 Mabo decision. The High Court’s Mabo decision leads to the recognition of Native Title and a legal/administrative process for claiming it. 1995 The Australian and NSW governments begin a process of legislative reform to enable Aboriginal co-management of national parks. 2001 National Parks and Wildlife Amendment Act 2001. Includes the redefining of Aboriginal relics as Aboriginal objects. 2003 NSW Two Ways Together program. A 10-year program to improve the lives of Aboriginal people and their communities in the areas of health, housing, education, culture and heritage, justice, economic development and families and young people. 2006 Aboriginal Natural Resources Agreement Kit. Acknowledges that Aboriginal peoples’ spirituality, culture, and identity are intertwined with the ‘natural’ landscape, and that Traditional Owners have responsibilities to care for the landscape. 2009 UN Declaration on the Rights of Indigenous People endorsed by the Australian government. 2010 Amendments to the NSW National Parks and Wildlife Act 1974, which expand protection of ‘Aboriginal objects’ and declared Aboriginal Places by broadening the definition of ‘harm’ under the Act and increase penalties for offences. Amendment of the NSW Constitution to acknowledge and honour Aboriginal people as the state’s first people and nations. NSW Labor government commits to the development of stand-alone legislation for Aboriginal cultural heritage. Table 1. Aboriginal heritage in NSW: a timeline (1889-2010) 9|P a g e Journal of the Australian Association of Consulting Archaeologists Submitting to the Journal The Journal of the Australian Association of Consulting Archaeologists (JAACA) is a peer reviewed journal that aims to encourage the communication of results, and exchange of ideas and information about issues of relevance to professional practice in Australia. The primary content of the journal is short reports (about 2000-2500 words) on topics such as interesting presentations of surveys, site recording and excavation results, and discussions about aspects of methodology, policy, legislation, public engagement, professional development, ethics etc. Contributions with a strong visual element are encouraged. Longer articles (up to about 5000 words) will also be considered for publication, as will themed special issues or supplements. Articles are published online on the AACAI website once they have completed the acceptance process, available to members only. At the end of each year, the current volume is closed off and a PDF made available to members. General access to issues of the journal is publicly available within four months. Opinions expressed in JAACA are those of the authors and are not necessarily the view of AACAI. Authors wishing to publish in the Journal of the Australian Association of Consulting Archaeologists are encouraged to contact the editors regarding potential articles or ideas for special supplements. The full requirements for format of submissions can be found on the AACAI website. URL:<http://www.aacai.com.au/publications/> Email: editor.jaaca@aacai.com.au ©Australian Association of Consulting Archaeologists Inc. ISSN 2202-7890 Volume 4 (Supplement) 2016