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): 8-19 Edict come, edict go: a critique of legislative approaches to the definition and conservation of Aboriginal heritage sites in Australia IAN RYAN and JJ McDERMOTT Ian Ryan (Gavin Jackson Cultural Resource Management, iryan@gjpl.com.au) JJ McDermott (Gavin Jackson Cultural Resource Management, jagemcdermott2@gmail.com) In this article, we offer a framework for a much-needed critical review of heritage legislation in Australia. We discuss the assessments of significance and importance of Aboriginal heritage places and objects, which have been the primary function of many Acts. While assessments were originally focused on principles drawn from the disciplines of archaeology and anthropology, this has recently changed to incorporate Aboriginal cultural values. We explore whether this change has been concomitant with a greater representation of Indigenous views in defining what constitutes Aboriginal heritage sites. We also focus on the significant decline in the number of Aboriginal archaeological sites being legally defined as Aboriginal heritage sites by some state governments (particularly Western Australia). The influence of the Native Title Act 1993 on Aboriginal heritage management and protection is also discussed. Finally, we explore what we see as potential opportunities for the archaeological and anthropological consulting community to more closely align our conceptions of significance with those of the primary custodians of that archaeology, Aboriginal Australians, in such a way that may lead to the conservation of more archaeological sites. A proposed framework for a critique of Aboriginal heritage legislation All Aboriginal heritage Acts currently in use in Australia state that they exist primarily to conserve or protect Aboriginal cultural heritage.1 There are two legislative and regulatory approaches to that protection: (1) Acts that grant blanket protection of all Aboriginal places and 1 The authors emphasise that they are not lawyers and any misunderstanding of the legislation discussed here may reflect a lack of legal training and/or interpretation. The authors are currently consulting archaeologists that have primarily worked in Western Australia and appreciate that they may not be as familiar with all of the nuances unique to the management of heritage resources elsewhere in Australia. Article History: Received 27/06/2016, Accepted 04/01/2017 objects, and (2) Acts that only protect ‘significant’ Aboriginal places and objects. The idea of blanket protection for Aboriginal heritage sites nominally applies in many of the Acts, explicitly mentioned as such in the Australian Capital Territory (ACT), Northern Territory (NT), Victoria, Tasmania and South Australia (SA) Acts. However, this has usually been diminished in practice, typically within the regulations associated with these Acts or simply in the way that the Acts are administrated. We discuss this in more detail below. We suggest all Australian heritage professionals should formulate critiques of the current Aboriginal heritage legislation and the manner in which they are administered in order to sustain the protection of Aboriginal cultural heritage in Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 the future. A sound basis for this critique should focus on three key questions: 1. How are significant Aboriginal heritage places and objects defined in legislation? 2. How is the significance and importance of Aboriginal places and objects assessed, and is the basis of these assessments made transparent? 3. Are Aboriginal heritage values at the centre of the assessment process and, when a council or formal entity assess sites, are they independent and are Aboriginal people directly involved in such deliberations? In order to develop this critique, we will first establish a background to the Aboriginal heritage Acts, briefly reviewing the course that legislation has taken throughout the last half century or so and exploring how it has evolved to its present state. Background to past and present Aboriginal heritage legislation in Australia Legislative protection of Aboriginal heritage in Australia began with the NT Native and Historical Objects and Areas Preservation Act 1955-60, followed by the SA Aboriginal and Historic Relics Preservation Act 1965 and the Queensland Aboriginal Relics Preservation Act 1967. Similar legislation was rolled out around the country in the late 1960s and throughout the 1970s (see Table 1). The Commonwealth Australian Heritage Commission Act was introduced in 1975 and aimed to fill the gaps where state legislation was considered inadequate. Many of these early Acts are often called ‘relics’ Acts, referring to the language used in their titles or aims, and tended to conceptualise Aboriginal heritage as fixed in time to the deep past. The key stakeholders in these original ‘relics’ Acts were not Aboriginal people but were anthropologists and archaeologists (Flood 1989:80). Places and objects were usually considered in terms of their importance or significance as an insight into ‘prehistory’ (Ritchie 1996:29). This reflected the widely held public view at the time that Aboriginal cultures were, in essence, a relic of the past and that any extant Indigenous people were ‘the last of their tribe’ (Lydon 2005:114). Even when the motives of the prime movers of these Acts are viewed from a more generous position it is difficult not to conclude, as Annie Ross did, that the aim of these Acts was ‘…to protect the resource of value to a particular profession, rather than the cultural heritage value to the people who created it’ (Hayes 2009:4). The colonised people whose cultural heritage was the focus of these Acts were rendered inactive and uninvolved in these legislative attempts to conserve Aboriginal cultural heritage. Indeed, at least one of these Acts, the Tasmanian Aboriginal Relics Act 1975, which is still active today, specifies a date after which places or objects could no longer be considered as Aboriginal relics i.e. 1876, the year that Truganini (then thought to be the last fully-descended Tasmanian Aboriginal person) had died. This presupposed that no living Aboriginal person would have a valid or meaningful perspective on defining what constitutes a place or object of Aboriginal heritage value (Smith 2000:112). Jurisdiction Legislation / Committee Year NT Native and Historical Objects and Areas Preservation Act 1955-60 SA Aboriginal and Historic Relics Preservation Act 1965 NT Aboriginal Lands Trust Act 1966 Qld Aboriginal Relics Preservation Act 1967 NSW Aboriginal Relics established Committee 1968 NSW National Parks and Wildlife (Amendment) Act 1970 WA Aboriginal Heritage Act 1972 Vic Archaeological and Preservation Act NT Aboriginal Land established Tas Aboriginal Relics Act 1975 Cwlth The Commonwealth Australian Heritage Commission Act 1975 Advisory Aboriginal Rights Relics 1972 Commission 1973 Table 1. Key moments in the early legislation of Aboriginal heritage in Australia 9|P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 The NT Aboriginal Sacred Sites Act was established initially in 1979 and it significantly differed from the other early heritage acts. Produced as complementary legislation to the Aboriginal Land Rights Act 1976 (an Act that was conceived in response to Indigenous civil and political agitation over land ownership in the mid-twentieth century), the Aboriginal Sacred Sites Act 1979 was designed to provide legal protection for ‘sacred sites’ in the territory (Edelman et al. 2010:2). These were defined as ‘…a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition’ (Part 6, Section 69). Importantly, the significance of these sites was to be defined by Aboriginal people. Moreover, for the first time since European occupation, here was legislation that acknowledged living Aboriginal people as the primary custodians of their own heritage. This reflected the then-dominant belief that archaeological sites constituted part of the ‘universal heritage’ and they were therefore best assessed by heritage professionals, but sacred sites were of value only to Aboriginal people. During the late 1970s there was a general recognition in some states that Aboriginal people should be involved in the assessment of heritage sites, particularly in South Australia (Wiltshire and Wallis 2008:106) and Western Australia (Chaloner 2004:60). Additionally, the right of Aboriginal people to determine and nominate places of heritage significance was integrated into the New South Wales Heritage Act 1977 and was central to a proposed replacement for the Victorian Archaeological and Aboriginal Relics Preservation Act 1972 that was defeated in the Victorian Upper House by the State Opposition majority (Edelman et al. 2010:5). Indeed, the Commonwealth’s Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was drafted as a response to failures in, and disputes arising out of, state and territory Aboriginal heritage legislation. Having been frustrated in the aforementioned attempt to integrate Aboriginal perspectives into a new heritage protection Act, the Victorian State Government successfully lobbied to have this Act amended to include specific protection for ‘…objects and places of particular significance to Aboriginal people in Victoria…’ (Edelman et al. 2010:5). By the mid90s however, the Act was seen as ineffective in providing any meaningful protection. In her review of the legislation, Justice Evatt (1998:8) lamented the meddling of politics in the decisionmaking process stating that: Few regimes give Indigenous people control over assessments or any real involvement in protection or policy development processes, and decision makers have a wide discretion to permit damage or destruction of significant sites. The result is that protection decisions depend to a great extent on political considerations. Jurisdiction Legislation ACT Heritage Act 2004 NSW National Parks and Wildlife Act 1974 (amended in 1996, 2001 and 2010) NSW Heritage Act 1977 (amended in 1991) NT Aboriginal Sacred Sites Act 1989 NT Heritage Act 2011 NT Aboriginal Land Rights Act 1976 (Administered by the Commonwealth) Qld Aboriginal Cultural Heritage Act 2003 Qld Torres Strait Islander Cultural Heritage Act 2003 SA Aboriginal Heritage Act 1988 Tas. Aboriginal Relics Act 1975 Vic. Aboriginal Heritage Act 2006 (amended 2013) WA Aboriginal Heritage Act 1972 (amended 1980, 1995 and 2004) Cwlth Environmental Protection and Biodiversity Conservation Act 1999 (amended in the Environment and Heritage Legislation Amendment Act (No. 1) 2003 and 2006) Cwlth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (amended 1987) Cwlth Protection of Movable Cultural Heritage Act 1986 Cwlth Native Title Act 1993 Table 2. Current and relevant Acts that deal with matters of Aboriginal heritage in Australia There have been many changes to Aboriginal heritage legislation in Australia since the mid90s, with some state Acts having been completely abolished and replaced by new Acts (such as in Queensland and Victoria). There have also been some attempts to reform state heritage legislation 10 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 in recent years but as of yet, these have not seen any outcome (such as in New South Wales and Western Australia). In addition to several federal legislative Acts, all states and territories in Australia now have some form of legislation in place that acknowledges Aboriginal cultural heritage (see Table 2). Definition of significant heritage places and objects Aboriginal Most of the Acts discussed here provide a definition of what constitutes a significant Aboriginal heritage site. Nevertheless, these are often ambiguous with little distinction made between archaeological significance and ethnographic significance (see Table 3). While some terminology is common, there is considerable variation between the definitions provided in each of the different state Acts. Indeed, the complex and contested notion of ‘significance’ informs the assessment of all sites even where it is not formally stated. Five Acts – the National Parks and Wildlife Act 1974 (NSW), Aboriginal Sacred Sites Act 1989 (NT), Aboriginal Heritage Act 1988 (SA), Aboriginal Heritage Act 2006 (Vic.) and the Aboriginal Heritage Act 1972 (WA) – refer specifically to significance directly attributable to Aboriginal people and/or their traditions. The Aboriginal Cultural Heritage Act 2003 (Qld) refers to notions of significance but does not mention significance to Aboriginal people. On the other hand, it does discuss archaeological significance, as does the Aboriginal Heritage Act 1972 (WA) and the Aboriginal Heritage Act 1988 (SA). Three Acts – the Aboriginal Relics Act 1975 (Tas.), Heritage Act 2011 (NT) and the Aboriginal Heritage Act 2006 (Vic.) – also appear to offer blanket protection for all Aboriginal archaeological sites but do not offer explicit definitions of archaeological significance. Legislative processes for assessing significance and importance in Aboriginal heritage Each state or territory assesses the significance and/or importance of Aboriginal heritage sites in various ways. All maintain registers of Aboriginal heritage sites, that have been assessed as significant. These are usually indexed and searchable to help stakeholders in managing the protection of these sites during ground disturbance development. Aboriginal heritage site registries usually include a record of all sites assessed by the government department irrespective of the results of this assessment. Each state and territory has a term for Aboriginal heritage places that have been assessed and considered to constitute significant Aboriginal sites under the relevant Acts, referred to as ‘Registered Aboriginal Sites’ in the ACT, SA and WA, ‘Declared Aboriginal Places’ in NSW, ‘Declared Heritage Places’ in NT, ‘Protected Sites’ in Tasmania, ‘Aboriginal Cultural Heritage Places’ in Victoria and ‘Significant Aboriginal Areas’ in Queensland. It is important to note that in most states and territories there has been a tradition of assessing some sites as being significant places, while simultaneously (or subsequently) granting permission to destroy or disturb them. Throughout the last 40 years in WA, for example, a great number of places were assessed and registered (i.e. were entered onto the state register as ‘Registered Aboriginal Sites’) but permission to destroy these places was granted through the section 18 process, as stipulated in the Aboriginal Heritage Act 1972 (WA). A change in policy led to a dramatic drop in the proportion of all reported Aboriginal heritage places being added to the register as ‘Registered Aboriginal Sites’ between 2012 and 2015 despite no change occurring in the Act itself (Dortch & Sapienza 2016:1). This suggests an interpretative change in the definition of significance by the WA Department of Aboriginal Affairs (DAA), even 11 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 though the change had never been previously communicated to stakeholders. Assessment by independent committee In NT, SA and WA, Aboriginal heritage sites are reported to the appropriate department by a relevant cultural heritage manager or stakeholder and then assessed by a legislatively required council or committee. Sites are assessed against an established set of criteria, usually outlined in legislative guidelines. In some states, such as WA, the processes by which the sites are assessed are confidential. In all, however, the relevant state government Minister makes the final decision on what sites are considered significant and if they can be disturbed. The Aboriginal heritage assessment process in SA is administered by the Aboriginal Affairs and Reconciliation (AAR) section of the Department of State Development. According to guidelines provided by the department in the past, the AAR ‘strongly advises’ that all development that will likely affect unknown Aboriginal sites should be carried out under a section 12 permit to determine whether there are Aboriginal sites or objects of significance in the area. An Aboriginal heritage committee consisting of Aboriginal persons appointed from across the state assess any reported sites or objects and provides advice to the current Minister for State Development (or an appointed Inspector), who has the final say in any assessment of an Aboriginal site or object (Edelman et al. 2010:57-58). The assessment of Aboriginal heritage sites in WA usually, but not always, occurs in the context of applications by various developers to disturb areas of land in a procedure outlined in section 18 of the Aboriginal Heritage Act 1972 (WA). Developers are obliged to demonstrate an attempt to identify Aboriginal heritage issues within an area proposed for development to the DAA. This usually requires proponents to provide evidence of consultation with appropriate registered Native Title claimant groups. Proponents typically include systematic records of any archaeological or ethnographic places and objects located within the area of proposed development. At the time of writing, Aboriginal heritage sites are assessed in WA by a government-appointed body, the Aboriginal Material Cultural Committee (ACMC), although the Minister for Aboriginal Affairs is free to ignore the ACMC’s advice (Barnsby 2013:19). A unique approach to site assessment is utilised in the NT. Where development is proposed and there is a likelihood of the presence of Aboriginal and Macassan archaeological places, the Heritage Branch of the Department of Lands, Planning and the Environment recommend that they should be approached for advice. The Heritage Branch provides advice to proponents about what steps, if any, need to be taken in order to ensure compliance with the Heritage Act 2011 (NT). This includes information about the existence of known Aboriginal and Macassan archaeological places, and where there are no known places, advice about the likelihood of such places existing there. Where adequate information is not available to assess the impact of the proposed development, the Branch require an archaeological survey to be undertaken, in accordance with a provided scope of works. Where archaeological sites are located during such surveys, an application is made to the Heritage Branch requesting to disturb the sites. These applications are then provided to the Heritage Council, which consists of eleven members elected from various organisations such as the National Trust, the Aboriginal Areas Protection Authority (AAPA), the Department itself, individual land owners, local government representatives, and two people of Aboriginal descent. The Council reviews each nominated site and then makes suggestions to the Minister as to the significance of each place. Places considered significant are added to the state register of Heritage Sites (Edelman et al. 2010:36-41). Cultural Heritage Management Plans Queensland, Victoria, NSW and ACT all require a detailed Cultural Heritage Management Plan (CHMP) to be submitted to the relevant 12 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 government department as part of any development proposal. Where any Aboriginal place or object is located, a systematic record of the site is made and assessed by an independent body and/or public servant before being sent for approval to the relevant Minister, or in the case of Victoria, the Secretary of the Department of Premier and Cabinet (although the Minister for Aboriginal Affairs also plays a role in Aboriginal heritage management here). Victoria, NSW and ACT also use a permit system that allows for some sites to be disturbed, but in Queensland this appears to be available but not often utilised (Burke & Smith 2007:141). The assessment of Aboriginal heritage places and objects in Queensland is undertaken by the Department of Aboriginal and Torres Strait Islander Partnerships. The system of management and protection of Aboriginal heritage sites in Queensland (including the Torres Strait Islands) is outlined in the duty of care guidelines for the Aboriginal Cultural Heritage Act 2003 (Queensland Government Department of Aboriginal and Torres Strait Islander and Multicultural Affairs 2004). This document sets out a framework for proponents to assess whether heritage sites will be impacted by their works and also encourages direct negotiation with appropriate Aboriginal stakeholders. The provision of an agreement between proponents and Aboriginal stakeholders (Native Title claimant groups or other Aboriginal corporations) removes the need for a permit to be obtained before CHMPs are prepared (Hayes 2009:37). Aboriginal parties are responsible for assessing the level of significance of places or objects and may engage a specialist consultant (archaeologist or anthropologist) if so desired. In recognition of the fact that this system of heritage selfregulation could sometimes be problematic, a series of potentially strict penalties can be imposed on an individual or body where they have destroyed potentially significant Aboriginal cultural heritage. The Minister is a key figure in this system as they are empowered to implement a ‘stop order’ on any development works. Importantly, the Minister also decides what Aboriginal heritage sites or objects outlined in a CHMP are added to the state’s Aboriginal Cultural Heritage Register (Burke & Smith 2007:142). In Victoria, a cultural heritage advisor prepares a report on behalf of a proponent outlining an assessment of potential impact to Aboriginal heritage likely to result from a proposed development. Developers may then make an application for a Cultural Heritage Permit in order to conduct activity that ‘will, or is likely to, harm Aboriginal cultural heritage’ (Hayes 2009:15). The Secretary of the Department of Planning and Community Development must then show this application to Registered Aboriginal Parties (RAP bodies) who have 30 days to indicate if they approve of the action or wish to apply conditions. The Aboriginal Heritage Council of Victoria, made up of eleven Traditional Owners appointed by the Minister of Aboriginal Affairs, makes decisions on the RAP bodies’ applications and provides further advice to the Secretary. This system appears to empower local Aboriginal stakeholders to determine what constitutes a significant Aboriginal site, but it has been strongly criticised in the past on a number of grounds (Kelleher 2008; Zorin 2014). As mentioned above, the assessment of Aboriginal heritage places in NSW is embedded in an Aboriginal heritage impact permit system. Rather than considering Aboriginal heritage places or objects in isolation, Aboriginal heritage in NSW is in principle assessed as part of the landscape. Regulation 80C of the National Parks and Wildlife Act 1974 regulations states that proponents must carry out a community consultation process. This involves informing the relevant Native Title holders or claimants, and inviting them to contribute to a cultural heritage assessment report. Under Clause 80C(6) of the regulations, a draft of this report is then provided to each registered Aboriginal party who have at least 28 days to review and provide comment. The Director General of the Department of 13 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 Environment, Climate Change and Water then reviews the provided report and determines if a proponent’s application for an Aboriginal heritage impact permit will be approved (Edelman et al. 2010:74-76). The ACT’s Heritage Act 2004 states that all Aboriginal places and objects are assessed by a Heritage Council that, as stated in section 17(3) of the Act, includes at least one representative of the Aboriginal community and may include experts in anthropology, history or archaeology. In conducting heritage assessments, the council is required to consult with Representative Aboriginal Organisations (RAOs) before determining if a place or object should be provisionally added to the heritage register (outlined in section 20 of the Act). If proposed development may interfere with the heritage values of an Aboriginal place or object (provisionally registered or not), a series of permits is used to structure the heritage assessment process; this includes Excavation Permits and Statement of Heritage Effect permits. These permits usually require the involvement of a cultural heritage specialist. Where disturbance of sites or objects is likely, a conservation management plan must be prepared by a cultural heritage specialist in consultation with each RAO and approved by the council. The council may also produce site or object-specific Heritage Guidelines that outline site assessments and formalises recommendations about management of heritage values (ACT Department of Environment and Sustainable Development 2011). Pre-development assessment When Aboriginal sites are located in Tasmania and cannot be avoided by development, a permit must be applied for through Aboriginal Heritage Tasmania (AHT), part of the Cultural Heritage Division in the Department of Primary Industries, Parks, Water and Environment. In the first instance, all recommendations and considerations are presented to the Director of National Parks and Wildlife as per the Aboriginal Relics Act 1975. The Director then makes a recommendation to the Minister of the department. According to the current available website for AHT, sites are assessed by Aboriginal Heritage Officers who are Aboriginal people with specialist training and skills that have been endorsed by their community (http://www.aboriginalheritage.tas.gov.au/aboutaboriginal-heritage-tasmania). They investigate areas of land for the presence or absence of Aboriginal heritage and provide advice on the ongoing management of this heritage to AHT. Despite heritage site recordings being undertaken by people of Aboriginal descent, it has been argued that the definitions of Aboriginal heritage in the outdated Aboriginal Relics Act 1974 are very restrictive (Boer & Wiffen 2006:296). Developers also commonly use the defence of ‘ignorance’ when damage to Aboriginal heritage occurs (Smith 2000:114). A lack of integration with the broader planning system and a lack of enforcement or regulation of the quality of Aboriginal heritage assessments unfortunately persist in Tasmania despite a recent attempt to align to the Victorian and NSW model of Aboriginal heritage management (Smith 2000:113-114). Discussion: a general critique of present Aboriginal heritage legislation As explored above, the assessment of the significance of Aboriginal heritage places and objects in most states and territories is regulated in such a way as to embed it in a land access approvals process. As with all legislation that regulates the conservation of natural and cultural resources, these Acts offer a legal framework for assessing heritage values in the face of potential disturbance. We then suggest that a key element of all of these Acts is that they are designed to: 1. compel developers to conduct an assessment of Aboriginal heritage before any significant ground disturbance activities are carried out 14 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 that may compromise the heritage values of a place; 2. outline and define what Aboriginal heritage places and objects will not be allowed to be disturbed by the state; and 3. establish an authority that can make legally binding determinations on these issues and prosecute any offenses against the relevant Acts (where such prosecutions are possible). Aboriginal heritage values are defined and assessed in various ways in current legislation, but, we believe, have historically tended to favour academic archaeological or anthropological definitions. Indeed, as Brown (2008:25) noted, the ‘…value of heritage items is often expressed by Aboriginal people…in archaeological terms because this is the language of the legislation.’ This has long been seen as a serious problem in an industry where it has sometimes been difficult to align Aboriginal empowerment in management of their own heritage with the ‘scientific’ objectives of archaeologists and anthropologists. An additional problem is that the site recordings, which are the subject of the governmentsanctioned significance assessment, are primarily done by cultural heritage management professionals who are somewhat removed from their relevant academic disciplines (North 2006:2). There is clearly an inherent tension in how the significance of Aboriginal heritage places and objects is assessed and, in particular, who is permitted to contribute to these assessments. The fact that some state government agencies, such as WA, do not provide clear guidelines about the criteria against which sites are assessed suggests there is a reluctance to allow this process to be externally scrutinised in any meaningful way. Indeed, it is difficult not to conclude that this is simply a mechanism through which control can be exerted over what and when places or objects are assessed as significant. Furthermore, the NT, SA, Victoria and WA Acts all require Aboriginal heritage places are conducted by councils or committees, which include Aboriginal people, but a public servant or Minister always has power of veto. The degree to which these bodies are independent is difficult to determine, although we suggest that the presence of governmentappointed representatives from departments or bodies with vested interests in promoting development somewhat undermine confidence in the independence of this process. Finally, an additional general criticism one can level at almost all of the current state, territory and federal Aboriginal cultural heritage Acts is that they tend to focus on heritage places and objects in isolation. This is inherent in a system where the requirements for reporting Aboriginal heritage places and objects to the relevant government bodies force Aboriginal stakeholders and heritage consultants to consider and describe Aboriginal heritage on a place by place (or object by object) basis. A far more useful and meaningful way of considering Aboriginal heritage would be an approach that considers the landscape as an occupied place, where all archaeological materials, ethnographic observations, recollections of Aboriginal stakeholders and other sources of Indigenous cultural experience and knowledge have the potential to provide information about past (and present) Aboriginal occupation. This way the significance of a place could be more fully explored, than is currently the case. Also, a heritage landscape approach would require more interdisciplinary collaboration and make better use of the specialised expertise of all stakeholders. The impact of the Native Title Act 1993 The most significant legislative change to the legal status of Aboriginal heritage since the era of the ‘relic’ Acts is the introduction of the Native Title Act 1993 (Cwlth). Native Title is defined under section 223 of this Act as: …the communal, group or individual rights and interests of Aboriginal peoples and Torres Strait Islanders in relation to land and waters, possessed under traditional law and custom, by which those people have a 15 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 connection with an area which is recognised under Australian law. Although primarily established to provide a framework for the recognition of Aboriginal rights to land through what has historically been a lengthy process of assessing Native Title claims, the Act is also interpreted as empowering Aboriginal Traditional Owners to manage their own heritage. A key concept in the Act is that of ‘future act’, described as ‘… a proposed activity on land and/or waters that may affect Native Title’(http://www.nntt.gov.au/Pages/Glossary.asp x). The Act requires that any party intending to undertake a ‘future act’ over an area subject to Native Title must negotiate with any person or body corporate who holds Native Title or has a registered Native Title claim over the area, a requirement referred to as the ‘right to negotiate’ (http://www.nntt.gov.au/futureacts/Pages/default. aspx). The Act includes an extensive section (subdivision B of Division 3) outlining Indigenous land use agreements (ILUAs, also known as ‘body corporate agreements’) that are intended to formalise negotiations relating to ‘future acts’. As such, ILUAs usually outline a series of negotiated terms and conditions relating to development projects, access to land, compensation or royalties from mines or similar resource extraction, or even the extinguishment of Native Title. These agreements often include sections dealing explicitly with cultural heritage or referring to completely separate heritage agreements. The National Native Title Tribunal website emphasises that ILUAs are intended to facilitate ‘…flexible, pragmatic agreements…’ so as to avoid unnecessary expensive legal action when conflicts between Native Title holders and other stakeholders arise (National Native Title Tribunal 2014). Although the Native Title Act 1993 is a federal act, ILUAs and Heritage Agreements have primarily been the responsibility of state governments. For example, the Department of Premier and Cabinet of the Western Australian State Government currently provides a guide to ILUAs and heritage agreements as downloadable PDFs (WA Government Department of Premier and Cabinet 2012). The introduction of Native Title legislation in the 1990s and the associated change, where Aboriginal heritage is managed in the context of state-based legislation to direct management by Aboriginal groups through ILUAs and heritage agreements, render previous heritage procedures redundant to some extent. While anecdotal evidence suggests that agreements have been negotiated between Native Title claimants/holders and developers that essentially ignore the Aboriginal Heritage Act 1972 (WA), section 7.2 of the Western Australia Standard Heritage Agreement clearly states that signatories are required to continue to comply with this Act. So has the Native Title Act 1993 been unequivocally beneficial for Aboriginal heritage? Any change in heritage management that helps Aboriginal people assert control over their heritage must be seen as an improvement on the status quo, particularly if this results in the empowerment of Indigenous stakeholders to define what constitutes a significant site (i.e. a place that must not be destroyed during development). Indeed, there is a growing body of evidence suggesting that Aboriginal notions of significance in heritage management have become far more important as a consequence of the Native Title Act 1993 (see Brown 2008; Godwin 2005; Lilley 2000). Some concerns have been raised about the level of corporate stakeholder coercion in Native Title negotiations, the level of transparency in these negotiations, and in the independence of the National Native Title Tribunal (Cleary 2014). We suggest, however, that the enthusiasm for reforming the Aboriginal heritage approvals process towards a system favouring ILUAs and heritage agreements shown by some elements of the Australian political establishment gives pause for thought. The current WA Minister for Aboriginal Affairs, Hon. Peter Collier MLC, was quoted by the ABC News in August 2015 saying 16 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 ‘…the current Aboriginal Heritage Act 1972 is outdated…[and]…was drafted more than 40 years ago, before Native Title gave traditional owners the right in law to speak for their country…’ (Garty 2015). This suggests the key reason for reforming state Aboriginal heritage legislation is to empower Aboriginal people by protecting heritage places that they believe are significant. However, this was not the primary motivation for the wide-ranging ‘Review of Approvals Processes in Western Australia’ prepared for the Minister for Mines and Petroleum in April 2009 that initiated and informed this reform. In the document outlining this review the Hon. Peter V. Jones AM, chairman of the industry working group that prepared the review, stated that the WA approvals system took ‘…too long…’, was ‘…too costly [and] bureaucratic…’ and was ‘...not always representing the objectives of the elected government…’ (WA Government Department of Mines and Petroleum 2009:i). Moreover, he went on to say this lamentable situation had come by virtue of the ‘intrusive’ Federal Government and their ‘acceptance of United Nations environmental and similar Treaties’ as well as the Environmental Protection and Biodiversity Conservation Act 1999, Native Title legislation, and ‘Aboriginal heritage issues’. Certainly, Jones makes no mention of empowering Native Title holders. In any case, traditional Aboriginal cultural heritage legislation remains relevant in areas where Native Title is not present. Aboriginal heritage sites located on land in which Native Title has been extinguished (i.e. on freehold land or where Native Title was relinquished through negotiation) may not necessarily be protected under any heritage agreements (Edelman et al. 2010:6). Conclusion Clearly, Aboriginal stakeholders should be the primary agents in determining what constitutes Aboriginal heritage. They should also have a say in how sites are managed and under what circumstances and terms Aboriginal heritage sites may be destroyed or impacted during development. While most of the current state, territory and federal Aboriginal cultural heritage Acts do little to empower Aboriginal people to assess and manage their own heritage, they do continue to protect many Aboriginal heritage objects and places. Additionally, these Acts force a level of engagement between industry and Aboriginal people in recording and assessing places these Acts were designed to protect. Moreover, we suggest that another positive outcome of these Acts is a large and detailed record of the Aboriginal archaeology of some sections of Australia (albeit of admittedly variable quality) destroyed by decades of mining industry and infrastructure-led development. It is possible that many of these Acts will be superseded over the next twenty years or so by Native Title determinations and negotiated heritage agreements embedded in ILUAs between Aboriginal groups and developers. This has led to much hand wringing on the part of archaeologists and other heritage professionals. As Zimmerman (1995:65) powerfully argued, archaeologists should not be the self-appointed ‘stewards of the past’, particularly in those parts of the world colonised by European nations after around 1500 AD. We suggest, however, that this does not mean that archaeologists should not engage with Aboriginal stakeholders to argue for conservation of archaeological sites and/or for systematic site recording of Aboriginal archaeological sites because they feel that, in doing so, they are continuing the colonising process. Other stakeholders generally have no hesitation in forcefully arguing development agendas. We believe that if archaeologists do not try and keep a seat at the table, while acknowledging that their perspectives are entirely secondary to those of Aboriginal stakeholders, a potentially important voice in arguing for conserving and/or systematically recording Aboriginal archaeological heritage will be lost. 17 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 Acknowledgements We presented a paper on this topic at the annual conference for the Australian Archaeological Association (AAA) in Cairns in 2014 and then again at the CHM & the Law workshop prior to the AAA 2015 conference in Fremantle. We would like to thank everyone who gave us positive feedback and encouragement after these presentations. We also thank the organisers of the CHM & the Law workshop at AAA 2015. The discussions at this workshop fed into many of the points that are made in this article and we are very grateful for that. We would also like to thank all our colleagues at Gavin Jackson Cultural Resource Management for their support and helpful advice. Finally, we appreciate and acknowledge the opportunity to publish in this volume offered to us by the editors, Jim Rhoads and Caroline Bird. References ACT Government Department of Environment and Sustainable Development 2011, ‘How is Aboriginal heritage protected in the ACT?’. Available from: <http://www.environment.act.gov.au/__data/assets/pdf_file/001 6/581002/7._ACT_Heritage_legislation__Aboriginal_Heritage.pdf> [28 May 2016]. Brown S 2008, ‘Mute or mutable? Archaeological significance, research and cultural heritage management in Australia’ Australian Archaeology 67:19-30. Barnsby M 2013, ‘The effectiveness of the Aboriginal Heritage Act 1972’. Parliamentary report, Murdoch University, Perth. Available from: <http://www.parliament.wa.gov.au/publications/tabledpapers.ns f/displaypaper/3911255c8081f93d62dd059c48257c8c0009f3cd/ $file/tp-1255.pdf > [28 May 2016]. Boer B & Wiffen G 2006, Heritage law in Australia, Oxford University Press, Melbourne. Burke H & Smith C 2008, Digging it up Down Under: a practical guide to doing archaeology in Australia, World Archaeological Congress Cultural Heritage Manual Series, Springer, New York. Chaloner T 2004, ‘The Aboriginal Heritage Act 1972: a clash of two cultures; a conflict between two laws’. Parliamentary report, Murdoch University, Perth. Available from: <http://dampierrockart.net/Chaloner_AHAreport_final.pdf> [28 May 2016]. Cleary P 2014, ‘Native Title contestation in Western Australia’s Pilbara region’, International Journal for Crime, Justice and Social Democracy 3(3):132-148. Dortch J & Sapienza T 2016, ‘Site watch: recent changes to Aboriginal heritage site registration in Western Australia’, Journal of the Australian Association of Consulting Archaeologists 4:1-12. Edelman D, Hall T, Hayes L, Byrne J, & Cowan C 2010, ‘Commonwealth, state and territory heritage regimes: summary of provisions for Aboriginal consultation’. A report for the New South Wales Aboriginal Land Council. Research Section of the National Native Title Tribunal, Canberra. Available from: <http://www.alc.org.au/media/61790/101221%20nntt%20herita ge%20regimes%20aboriginal%20consultation%20final.pdf > [21 March 2016]. Evatt E 1998, ‘Overview of state and territory Aboriginal heritage legislation’, Indigenous Law Bulletin 4(16):4-8. Flood J 1989, ‘Tread softly for you tread on my bones’: The Development of Cultural Resource Management in Australia’, in Archaeological Heritage Management in the Modern World, ed. H. F. Cleere, Unwin Hyman, London, pp. 79-101. Garty L 2015, ‘Aboriginal, non-Indigenous heritage sites being treated unequally, archaeologists say’. Available from: <http://www.abc.net.au/news/2015-08-13/aboriginal-heritagesites-treated-unequally-archaeologists-say/6695368> [20 April 2016]. Godwin L 2005, ‘“Everyday archaeology”: archaeological heritage management and its relationship to Native Title in development-related processes’, Australian Aboriginal Studies 2005/1:74–83. Hayes L 2009, ‘Indigenous cultural heritage schemes in Victoria, Queensland and the Northern Territory: an overview’. Prepared for the South Australia Native Title Resolution Negotiating Parties by the Research Section of the National Native Title Tribunal, Canberra. Available from: <http://www.nntt.gov.au/Information%20Publications/Vic-Qldand-NT-heritage-overview.pdf > [20 April 2016]. Kelleher L 2008, ‘Story telling: silence and voice – hope, trust and knowledge – reflections on Aboriginal heritage legislation’. Paper presented to conference of the Australian Sociological Association, December 2008, University of Melbourne. Lilley I 2000, Native Title and the transformations of archaeology in the postcolonial world, Oceania Monograph 50, Oceania Publications, Sydney. Lydon J 2005, Eye contact: photographing Indigenous Australians, Duke University Press, London. North MA 2006, ‘Protecting the past for the public good: archaeology and Australian heritage law’. Unpublished PhD Thesis, University of Sydney. Queensland Government Department of Aboriginal and Torres Strait Islander and Multicultural Affairs 2004, Aboriginal Cultural Heritage Act 2003 duty of care guidelines, Department of Aboriginal and Torres Strait Islander and Multicultural Affairs, Brisbane. Previously available from: <https://www.datsip.qld.gov.au/resources/datsima > but now removed. Ritchie D 1996, ‘Australian heritage protection laws: an overview’, in Heritage and Native Title: anthropological and legal perspectives, eds J Finlayson & A Jackson-Nakano, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, pp 28-39. Smith L 2000, ‘A history of Aboriginal heritage legislation in southeastern Australia’, Australian Archaeology 50:109-18. Western Australia Government Department of Mines and Petroleum 2009, Review of approvals processes in Western Australia. Industry working group report, prepared for the Minister of Mines and Petroleum, Perth. Available from: <https://aboriginalheritagewa.files.wordpress.com/2016/01/revi ew_of_approval_processes_070809_web7.pdf > [20 March 2016]. 18 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement): 8-19 Western Australia Government Department of the Premier and Cabinet 2012, Guide to the government Indigenous land use agreement and standard heritage agreements. Native Title Unit, Department of the Premier and Cabinet, Perth. Available from: <https://www.dpc.wa.gov.au/lantu/MediaPublications/Documen ts/Guide%20to%20the%20Govt%20ILUA%20and%20SHAs% 20-%2017%20October%202014.pdf> [20 March 2016]. . Act Definitions of terms relating to Aboriginal Places Heritage Act 2004 (ACT) Aboriginal place means a place associated with Aboriginal people e ause of A origi al traditio …A origi al tradition means the customs, rituals, institutions, beliefs or general way of life of Aboriginal people. Part , Section 8) National Parks and Wildlife Act 1974 (NSW) The A t defines A original land as certain lands reserved under this Act [that] are of cultural significance to Aboriginal persons. Land is of cultural significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aborigi al perso s. (Part 4A, Section 71D) Heritage Act 2011 (NT) A A origi al or Ma assa ar haeologi al pla e is a pla e that: a relates to the past hu a o upatio of the Territory y A origi al or Ma assa people; a d has ee odified y the a ti ity of those people. (Part 1.2, Section 6(2)) Aboriginal Sacred Sites Act 1989 (NT) A ‘sacred site’ has the same meaning in this Act as it did in the Land Rights Act 1976: ‘…a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition. Part 6, Se tion 6 Aboriginal Cultural Heritage Act 2003 / Torres Strait Islander Cultural Heritage Act 2003 (Qld) Aboriginal cultural heritage is anything that is — (a) a significant Aboriginal area in Queensland (or Torres Strait Islands); (b) a significant Aboriginal object; or (c) evidence, of archaeological or historic significance, of Aboriginal occupation of an area of Queensland (or Torres Strait Islands). Part , Se tion Aboriginal Heritage Act 1988 (SA) A origi al site ea s a area of la d— (a) that is of significance according to Aboriginal tradition; or (b) that is of significance to Aboriginal archaeology, anthropology or history, and includes an area or an area of a class declared by regulation to be an Aboriginal site but does not include an area or an area of a class excluded by regulation from the ambit of this definition.' (Part 1, Section 3) Aboriginal Relics Act 1975 (Tas.) …a reli is—(a) any artefact, painting, carving, engraving, arrangement of stones, midden, or other object made or created by any of the original inhabitants of Australia or the descendants of any such inhabitants; (b) any object, site, or place that bears signs of the activities of any such original inhabitants or their descendants; or (c) the remains of the body of such an original inhabitant or of a descendant of such an inhabitant who died before the year 1876 that are not interred in – (i) any land that is or has been held, set aside, reserved, or used for the purposes of a burial ground or cemetery pursuant to any Act, deed, or other instrument; or (ii) a marked grave in a y other la d. (Part 1, Section 2(3)) Aboriginal Heritage Act 2006 (Vic.) …a A origi al pla e is a area i Vi toria or the oastal aters of Vi toria that is of cultural heritage sig ifi a e to the A origi al people of Vi toria…”area” i ludes a y o e of the follo i g—(a) an area of land; (b) an expanse of water; (c) a natural feature, formation or landscape; (d) an archaeological site, feature or deposit; (e) the area immediately surrounding any thing referred to in paragraphs (c) and (d), to the extent that it cannot be separated from the thing without diminishing or destroying the cultural heritage significance attached to the thing by Aboriginal people; (f) land set aside for the purpose of enabling Aboriginal human remains to be re-i terred or other ise deposited o a per a e t asis; g a uildi g or stru ture. (Part 1, Section 5) Aboriginal Heritage Act 1972 (WA) This Act applies to—(a) any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present; (b) any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent; (c) any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State; (d) any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or re o ed. (Part 2, Section 5) (Further definitions of importance and significance are found in Part 5, Section 39) Table 3: Definition of Aboriginal places in current and relevant state legislative Acts 19 | P a g e Journal of the Australian Association of Consulting Archaeologists, Volume 4 (Supplement) 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. JAACA is an open access online journal. Articles are published on the AACAI website once they have completed the acceptance process. At the end of each year, the current volume is closed off and a PDF of the complete volume is made available. Opinions expressed in JAACA are those of the authors and are not necessarily the view of AACAI. Editors JAACA is edited by Dr Caroline Bird and Dr Jim Rhoads. 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/Journal/> Email: editor.jaaca@aacai.com.au ©Australian Association of Consulting Archaeologists Inc. ISSN 2202-7890