International Journal of Cultural Property (2021), 1–29
doi:10.1017/S0940739120000284
A RT IC L E
Are we there yet? A review of proposed Aboriginal cultural
heritage laws in New South Wales, Australia
Kylie Lingard1*
, Natalie P. Stoianoff2
, Evana Wright2
and Sarah Wright1
1
School of Law, University of Wollongong, Wollongong, Australia
Faculty of Law, University of Technology Sydney, Ultimo, Australia
*Corresponding author. Email: klingard@uow.edu.au
2
Abstract
This article examines the extent to which a recent law reform initiative in New South Wales (NSW),
Australia—the draft Aboriginal Cultural Heritage Bill 2018 (NSW)—advances the general principles
outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The
examination reveals some improvements on the current legal framework and some concerning
proposals that distance the NSW government from the UNDRIP principles. Key concerns include a
proposed transfer of administrative responsibility to Aboriginal bodies with no corresponding
guarantee of funding; the continued vesting of key decision-making powers in government; inept
provisions for the protection of secret knowledge; and lower penalties for harming cultural heritage
than for related offences in existing environmental and planning legislation. Given the bill’s weaknesses, the article explores pragmatic alternatives to better advance the UNDRIP principles.
Keywords: Indigenous cultural heritage; Indigenous knowledge; Intangible cultural heritage; Tangible
cultural heritage; Australia
Introduction
People have been forced away from the lands and made to feel ashamed of their
knowledge and actively told to forget their knowledge and then organisations like this
one that’s tried with limited resources to try and sort of gather back that knowledge
and look after it. … But it’s a losing battle. Then governments and others think ok well
because Aboriginal people don’t live on that property now or manage it actively at the
moment then that’s just up for grabs.1
This opening quotation represents the “sense of marginalisation, dispossession and injustice still felt by members of [New South Wales Aboriginal] communities today, but equally
confirm[s] the strong connection to Country and the importance of access to Country for the
wellbeing of Aboriginal peoples whether on Country or otherwise.”2 Australia’s First Peoples
1
Response of Participant 11 on the topic of Aboriginal connection to culture and Country, reported in University
of Technology Sydney (UTS)-Indigenous Knowledge Forum and North West Local Land Services, Recognising and
Protecting Aboriginal Knowledge Associated with Natural Resource Management, white paper prepared for the Office of
Environment and Heritage (OEH) (2014), 1–137.
2
Stoianoff, Cahill, and Wright 2017, 25–26.
© The Author(s), 2021. Published by Cambridge University Press.
2
Kylie Lingard et al.
comprise Aboriginal people from mainland Australia and Torres Strait Islander people from
the islands to the north of the mainland.3 Aboriginal and Torres Strait Islander peoples
collectively constitute one of the world’s longest continuing cultures, with over 60,000 years
of connection to Country and culture.4 As Ngunnawal Elder Tina Brown, has stated,
Indigenous communities keep their cultural heritage alive by passing their knowledge,
arts, ceremonies and performances from one generation to another, speaking and
teaching languages, protecting cultural materials, sacred and significant sites, and
objects. For Indigenous Australians, the land is the core of all spirituality and this
relationship and the spirit of “Country” is central to the issues that are important to
Indigenous people today.5
The tangible cultural heritage of Aboriginal and Torres Strait Islander people includes
landscapes, water, sacred sites, sites of recent historical significance,6 objects such as
spearheads,7 ancestral remains, rock engravings, minerals, written literary works, artworks,
and native plants and animals traditionally used for food and medicine.8 Intangible heritage
includes relationships with tangible heritage, oral stories and ceremonies associated with
tangible heritage,9 and agricultural, scientific and ecological knowledge.10 Despite the term
“heritage” implying something ancient or past, Aboriginal and Torres Strait Islander
heritage “includes items which may be created in the future.”11 While some Aboriginal
and Torres Strait Islander communities may share traditions, laws, languages, and cultural
heritage, great diversity exists within these two groups.12 This is exemplified by the
existence of more than 250 different Aboriginal and Torres Strait Islander languages.13 A
group, and the individuals within it, may also have unique needs and aspirations that reflect
“customary rights and duties, social positions, political and economic motivations, and
personal capacities.”14
Successive colonial government policies have had a traumatic effect on cultural heritage.
Early policies, justified at the time as necessary to “protect” Aboriginal and Torres Strait
Islander people, dictated “where Aboriginal people could live and work … [and] … their freedom
of movement.”15 The lack of capacity to access land or participate in government decisions left
cultural heritage “vulnerable and endangered” because Aboriginal and Torres Strait Islander
people could not access land to maintain their cultural heritage or participate in decision
making that authorized its destruction.16 These threats continue today, alongside threats posed
by approved and illegal destruction, through activities such as development and agriculture,
limited funding for cultural heritage conservation, invasive species, and climate change.17
3
Horton 1996; Australian Institute of Aboriginal and Torres Strait Islander Studies 2018; Korff 2019.
Tobler et al. 2017.
5
Australia, Department of the Prime Minister and Cabinet 2018, 23.
6
Terri Janke and Company 1999; Pepper and Duxson 2014.
7
Pepper and Duxson 2014.
8
Terri Janke and Company 1999; Sullivan 2016.
9
Pepper and Duxson 2014.
10
Terri Janke and Company 1999; Stoianoff 2012; Lingard and Martin 2016.
11
Terri Janke and Company 1999, 12; see also Sullivan 2016.
12
See Bianco 2008.
13
Australian Institute of Aboriginal and Torres Strait Islander Studies 2018; see also Horton 1996.
14
Lingard and Martin 2016, 33.
15
Heiss 2013; see also Wilkie 1997; see, e.g., Aborigines Protection Act 1909 (NSW).
16
Angus 2018; Battiste and Henderson 2000; Terri Janke and Company 1999; Pepper and Duxson 2014.
17
Schnierer, Ellsmore, and Schnierer 2011.
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International Journal of Cultural Property
3
Colonial government intrusions into the affairs of Aboriginal and Torres Strait Islander
people are at odds with the key principle in the United Nations Declaration on the Rights of
Indigenous Peoples (UNDRIP) of informed consent secured in accordance with decisionmaking processes and institutions determined by Indigenous peoples themselves.18 The aim
of this article is to examine the extent to which a recently proposed Aboriginal Cultural
Heritage (ACH) law in the state of New South Wales (NSW), Australia, advances the minimum
standards for cultural heritage protection outlined in the UNDRIP.
In 2009, Australia committed to implementing laws consistent with the human rights
principles in the UNDRIP.19 The UNDRIP endorses the rights of Indigenous peoples to, among
other things,
• provide informed consent to legislative or administrative measures that may affect
them;20
• participate in decision making in matters affecting their rights, through representatives chosen by themselves and in accordance with their decision-making processes
and institutions;21
• maintain, protect, control and develop their cultural heritage;22 and
• be compensated for any unauthorized destruction of their cultural heritage.23
The UNDRIP asserts the rights contained within it, including the above rights, as the
minimum standards necessary for the survival, dignity, and well-being of Indigenous
peoples.24 However, the UNDRIP is not a binding international instrument. Even if it were,
the Australian federal system requires national legislation to activate the rights espoused in
that instrument, although this does not mean that state and territory legislatures cannot
themselves enact legislation that gives effect to the UNDRIP principles. It is in this context
that this article considers NSW’s scorecard for advancing UNDRIP principles through a
recent draft ACH law.
The draft Aboriginal Cultural Heritage Bill 2018 (NSW) (ACH Bill) proposes seven
objectives:
(1) recognize that ACH belongs to Aboriginal people;
(2) establish a legislative framework that reflects Aboriginal people’s responsibility for,
and authority over, ACH;
(3) recognize ACH as a living culture that is intrinsic to the well-being of Aboriginal
people;
(4) establish effective processes for conservation and management of ACH and regulate
potentially harmful activities to achieve better outcomes for Aboriginal people and
the wider NSW community;
(5) collect and use information about ACH in a “culturally sensitive manner” to support
planning, conservation, and regulatory actions;
18
United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, UN Doc.
A/RES/61/295, 13 September 2007, Arts. 18, 19 (UNDRIP).
19
Macklin 2009; Australian Capital Territory Human Rights Commission 2019; see also Human Rights Council
2016, Addendum 1, para. 25. This report notes that Australia intends to ensure laws/actions reflect the aims of the
UNDRIP.
20
UNDRIP, Art. 19.
21
UNDRIP, Art. 18.
22
UNDRIP, Art. 31.
23
UNDRIP, Art. 28.
24
UNDRIP, Art. 43.
4
Kylie Lingard et al.
(6) promote understanding of, and respect for, ACH among all NSW people; and
(7) enable and support voluntary actions that conserve ACH.25
At first glance, these objectives advance the UNDRIP principles. Objectives 1, 2, and 7 are
consistent with the UNDRIP principle of Aboriginal ownership of, and responsibility for,
ACH, in accordance with their own decision-making processes and institutions.26 Objectives
3 and 4 reflect the UNDRIP’s recognition of the link between ACH ownership, decision
making, and Aboriginal well-being.27 Objective 5 seeks to balance respect for cultural rules
and sensitivity regarding ACH information, in accordance with Article 31 of the UNDRIP,
with the need for informed decision making on other matters. Objective 6 promotes the
UNDRIP principle of respect for the customs and traditions of Aboriginal people.28
Each objective can therefore help advance the UNDRIP principles in the NSW ACH
context.29 This article examines the extent to which the proposed mechanisms in the
ACH Bill maximize this opportunity. Such an examination helps hold policymakers accountable to the global and local community, highlights areas where existing and proposed laws
may need to be strengthened, and contributes ideas on how to apply generic UNDRIP
principles in local contexts. The article begins by explaining where NSW ACH regulation
fits within the national context. It then examines the extent to which the proposed legal
framework advances the above objectives of the ACH Bill, and related UNDRIP principles, in
the NSW context. The examination follows the socio-legal research method, analyzing law
within the social situation to which the law applies.30 In this article, we contextualize the
abstract principles in the UNDRIP within the NSW context. The article takes a critical
analysis approach with a human rights focus, examining where the ACH Bill succeeds or fails
in achieving its own objectives and the UNDRIP principles. The analysis draws on submissions of Aboriginal people to government inquiries, publicly available data, consultation
reports with Aboriginal people, academic scholarship, and the authors’ collective prior
research on ACH policies.31
ACH regulation in NSW
The main reason that Australian states and territories have made ACH laws is to preemptively reconcile conflicts that may arise between the interests of Aboriginal and Torres Strait
Islander people, private landholders, developers, the public, environmental groups, and
governments.32 Reconciling these interests requires some limits to the full implementation
of the UNDRIP principles. For example, it is impractical to recognize Aboriginal sovereignty
over all private land. Unfortunately, and despite recent law reforms around Australia,33 most
mainland ACH laws exceed pragmatic limits and accord unequivocal priority to developers,
especially for major projects such as mining.34 NSW ACH legislation, in particular, has been
criticized for inadequately respecting the cultural heritage of Aboriginal people.35
25
Aboriginal Cultural Heritage Bill 2018 (NSW) (in draft form), clause 3 (ACH Bill).
See, e.g., UNDRIP, Arts. 3, 4, 11, 12, 18, 19, 26, 31.
27
UNDRIP, Art. 43.
28
UNDRIP, Art. 26.
29
Butterly and Pepper 2017.
30
Hutchinson and Duncan 2012; see also Van Hoecke 2011.
31
See, e.g., Lingard 2012; Stoianoff 2012; UTS-Indigenous Knowledge Forum and North West Local Land Services
2014; Perry and Lingard 2018; Wright and Stoianoff 2018.
32
Butterly and Pepper 2017.
33
Butterly and Pepper 2017.
34
Schnierer, Ellsmore, and Schnierer 2011.
35
Schnierer, Ellsmore, and Schnierer 2011.
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International Journal of Cultural Property
5
NSW is the only Australian state not to have stand-alone ACH legislation.36 Instead, ACH
protection falls under the generic Heritage Act 1977 or, predominately, the National Parks
and Wildlife Act 1974 (NPWA).37 The Heritage Act does not specifically refer to ACH. It
contains a “laborious” process for registering Aboriginal sites or objects of “State heritage
significance.”38 The process can require the public disclosure of secret cultural information.39 The Heritage Act allows for the destruction of ACH upon the issue of an excavation
permit. The government routinely grants these permits without any consultation with
Aboriginal people.40 Unsurprisingly, the NSW Heritage Register contains only 34 ACH items
compared to 1,690 non-Aboriginal heritage items.41
ACH matters in NSW have been addressed mainly through the NPWA,42 which is
administered by the Office for Environment and Heritage (OEH). The OEH recognizes that
regulating ACH alongside wildlife is “offensive.”43 It also concedes that the current provisions fail to acknowledge the importance of ACH in the lives of Aboriginal people.44 Despite
these acknowledgements and the existence of sanctions for the unauthorized destruction of
Aboriginal “objects” or declared “Aboriginal places,” the OEH has approved 95–97 percent of
applications for permits to harm ACH.45 This approval rate, and the exemption of “statesignificant” developments from permit requirements,46 underpins widespread criticism
that current ACH laws authorize ACH destruction.47
Other key issues with the current legal framework include a focus on tangible cultural
heritage48 and the conservation of ACH of archaeological or public significance,49 the vesting
of key ACH decision in developers, archaeologists, and government officials,50 smaller
maximum penalties for ACH harm compared to related environmental offences,51 and a
historical lack of prosecutions of ACH offences.52 In recent developments, the newly formed
Heritage New South Wales, located in the Department of Premier and Cabinet, now has
responsibility for ACH. Perhaps this development reflects a more serious consideration of
ACH by the NSW government? Nevertheless, the legislation remains the same.
36
Aboriginal Heritage Act 2006 (Vic); Aboriginal Heritage Act 1988 (SA); Aboriginal Heritage Act 1975 (Tas);
Aboriginal Heritage Act 1972 (WA); Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Islander Cultural
Heritage Act 2003 (Qld); Aboriginal And Torres Strait Islander Heritage Protection Act 1984 (Cth).
37
Heritage Act 1977 (NSW); National Parks and Wildlife Act 1974 (NSW) (NPWA).
38
Pepper and Duxson 2014.
39
Pepper and Duxson 2014.
40
Pepper and Duxson 2014.
41
Pepper and Duxson 2014; OEH 2020b.
42
Pepper and Duxson 2014.
43
OEH 2017, 1; see also Pepper and Duxson 2014; New South Wales (NSW) Aboriginal Land Council 2018a.
44
OEH 2017; see also Pepper and Duxson 2014; NSW Aboriginal Land Council 2018a.
45
Schnierer, Ellsmore, and Schnierer 2011; NSW Aboriginal Land Council 2018a; OEH 2020a.
46
Schnierer, Ellsmore, and Schnierer 2011; Butterly and Pepper 2017.
47
Schnierer, Ellsmore, and Schnierer 2011; NSW Aboriginal Land Council 2018a.
48
Pepper and Duxson 2014; Butterly and Pepper 2017; Schnierer, Ellsmore, and Schnierer 2011; NSW Aboriginal
Land Council 2018a.
49
Schnierer, Ellsmore, and Schnierer 2011; Pepper and Duxson 2014; NPWA, s. 2A(1)(b).
50
Pepper and Duxson 2014; Butterly and Pepper 2017; NSW Aboriginal Land Council 2018a; NPWA, s. 85(1).
51
Schnierer, Ellsmore, and Schnierer 2011; Pepper and Duxson 2014; Butterly and Pepper 2017.
52
See OEH, “Publications,” https://www.environment.nsw.gov.au/research-and-publications/publicationssearch?tags=Annual report (accessed 7 March 2021). For published decisions during this period, see Garrett
v. Williams, (2007) 151 LGERA 92; Plath v. O’Neill, (2007) 174 A Crim R 336; Chief Executive of the Office of
Environment and Heritage v. Ausgrid, (2010) 199 LGERA 1; Chief Executive of the Office of Environment and Heritage
v. Crown in the Right of New South Wales, [2016] NSWLEC 147; Chief Executive, Office of Environment and Heritage
v. Clarence Valley Council, (2018) 236 LGERA 291. See generally Schnierer, Ellsmore, and Schnierer 2011; Pepper and
Duxson 2014; Butterly and Pepper 2017.
6
Kylie Lingard et al.
Since 2011, the OEH has explored new stand-alone (or sui generis) ACH laws.53 The OEH
convened an independent Aboriginal Culture and Heritage Reform Working Party in 2012 with
specified terms of reference and a diversity of skills and experience, but it included both
Indigenous and non-Indigenous members led by a non-Indigenous lawyer.54 That same year,
the OEH conducted two stakeholder consultations, and the working party examined the current
NSW approach, reviewed the regulatory systems in other Australian jurisdictions, and considered the input from the two consultations undertaken by the OEH.55 By the end of 2012, the
working party had provided 23 recommendations for reform.56 These recommendations
provided the foundation for the NSW government’s first proposed model for an ACH system
in 2013.57 The model did not take into account intangible heritage and focused on streamlining
the pathway for permit applications to harm ACH rather than aiming to protect ACH.
During this time, the OEH, through the Namoi Catchment Management Authority’s58
Aboriginal Advisory Committee, provided grant funding to the Indigenous Knowledge
Forum, based at the University of Technology Sydney, to investigate developing a model
law for the recognition and protection of Aboriginal knowledge associated with natural
resource management. In 2014, the Indigenous Knowledge Forum published a white paper
espousing the establishment of stand-alone legislation for the recognition and protection of
Aboriginal knowledge.59 While not adopted by the OEH, the model was utilized in its
subsequent work and comprehensive consultation processes during 2017, leading to the
ACH Bill in 2018. The NSW government released the ACH Bill for public consultation in 2018.
After considering submissions, the government intended to introduce a version of the Bill to
the NSW Parliament to enact as law—this has yet to occur.60
The following analysis considers the extent to which the mechanisms proposed in the
ACH Bill advance the proposed objectives and related UNDRIP principles. The discussion is
grouped under five broad themes:
•
•
•
•
•
broader recognition of ACH values;
decision making by Aboriginal people;
better information management;
improved protection, management, and conservation of ACH; and
greater confidence in the regulatory system.61
Each section considers how the proposed mechanisms improve upon the current framework, advance the proposed objectives in the ACH Bill, and reflect the UNDRIP principles.
Each section considers pragmatic alternatives to provisions that fail to advance the proposed objectives and/or UNDRIP principles.
Broader recognition of ACH values
The objective of existing legislation is to conserve places, objects, and features of significance to Aboriginal people or the public.62 The focus on Aboriginal places and objects
53
54
55
56
57
58
59
60
61
62
Schnierer, Ellsmore, and Schnierer 2011; Lingard and Martin 2016.
OEH 2013.
OEH 2013.
OEH 2013.
OEH 2013.
Later known as the North West Local Land Services.
UTS-Indigenous Knowledge Forum and North West Local Land Services 2014.
OEH 2017.
OEH 2017; OEH 2018b.
NPWA, ss. 2A(1)(b), 5.
International Journal of Cultural Property
7
continues in the definition of an Aboriginal place as a place declared by the minister to be an
Aboriginal place.63 The legislation defines an Aboriginal object as “[a]ny deposit, object or
material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of … NSW, being habitation before or concurrent with (or both) the occupation of that
area by persons of non-Aboriginal extraction, and includes Aboriginal remains.” The ACH
Bill proposes a new ACH definition.64 The Bill defines ACH as “[t]he living, traditional and
historical practices, representations, expressions, beliefs, knowledge and skills (together
with the associated environment, landscapes, places, objects, ancestral remains and materials) that Aboriginal people recognise as part of their cultural heritage and identity.”65 This
substantially expands the current legal focus on objects and places. However, the new
definition fails to recognize the holistic nature of ACH because it provides a separate
definition of intangible ACH.66 Intangible ACH is defined as
[a]ny practices, representations, expressions, beliefs, knowledge or skills comprising
ACH (including intellectual creation or innovation of Aboriginal people based on or
derived from ACH), but does not include Aboriginal objects, Aboriginal ancestral
remains or any other tangible materials comprising ACH.67
The ACH Bill does not make clear that the defined term “Aboriginal cultural heritage”
includes the defined term “intangible Aboriginal cultural heritage.” Further, the definition
does not recognize the potential for intangible ACH to evolve and adapt in the future.
Aboriginal knowledge and cultural expressions are “dynamic, innovative and constantly
responding or adapting to the needs of the community, their environment and sense of
place.”68 The broader recognition of ACH values could be advanced by defining ACH in a
manner that includes intangible ACH and by extending the definition to include ACH created
in the future.69
Decision making by Aboriginal people
The ACH Bill proposes three mechanisms to advance a framework that reflects Aboriginal
people’s ownership of, and responsibility for, ACH.70 First, the Bill proposes a central ACH
Authority. Second, it proposes the transfer of ACH ownership to this Authority. Third, it
creates local panels to advise the central Authority on local ACH matters. During consultations on the ACH Bill, many Aboriginal people asserted a “strong preference” for decisionmaking structures that prioritize the voices of local cultural authorities.71 Local cultural
authorities are Aboriginal people with customary law responsibilities for ACH within an
Aboriginal language group. This prioritization of local voices is necessary if the NSW
government is to advance decision making by Aboriginal people and the UNDRIP principle
of respecting Indigenous decision-making institutions.72
63
64
65
66
67
68
69
70
71
72
NPWA, s. 5.
OEH 2017; OEH 2018b.
ACH Bill, clause 4(1).
ACH Bill, clause 4(2).
ACH Bill, clause 4(2).
Stoianoff 2012.
Stoianoff 2012.
ACH Bill, clause 3(a)(i).
OEH 2017; Perry and Lingard 2018.
UNDRIP, Art. 18.
8
Kylie Lingard et al.
This section examines the proposed ownership structure and process for forming the
new entities in order to determine the extent to which they are capable of prioritizing the
voices of Aboriginal people, especially local cultural authorities. Subsequent sections
examine the proposed functions of the new entities.
ACH ownership
Current law vests ownership of Aboriginal objects in the Crown.73 It excludes compensation
payments for this usurpation of ownership and makes no provision for the ownership of
other types of ACH.74 It instead vests the chief executive of OEH with legal authority to care
for and protect Aboriginal objects and places on public and private land.75 The ACH Bill aims
to “recognize” that ACH belongs to Aboriginal people and to establish a legal framework that
reflects Aboriginal people’s authority over ACH.76 As stated above, a framework that reflects
Aboriginal authority is one that recognizes the ownership rights of local Aboriginal groups
with traditional links to the area.77 Unfortunately, the ACH Bill does not recognize the
ownership rights of local groups. It instead transfers ownership of, and responsibility for,
Aboriginal objects and ancestral remains to a central ACH Authority, “to hold … on behalf of
Aboriginal people.”78 Repatriation of objects or ancestral remains to local groups is at the
discretion of the centralized Authority,79 and the ACH Bill expressly excludes the possibility
of compensation for local Aboriginal groups denied a repatriation request.80
Further, the ACH Bill does not recognize Aboriginal ownership rights over other types of
ACH. For example, the Bill does not recognize the right of Aboriginal people to control access
to sacred sites on public lands. Existing Australian laws demonstrate the capacity of the ACH
Bill to do more to advance its objectives and the UNDRIP principles. For example, current
federal law at least allows Aboriginal people with a traditional connection to a public area to
apply for rights to control access to sacred sites in the area, even though the threshold test is
high.81 Current NSW law allows Aboriginal people to pick protected plants on private lands
with the landowner’s permission but without the need to apply for a government license.82
These examples demonstrate the capacity of the ACH Bill to recognize Aboriginal ownership
of more ACH without displacing the Western property rights system.
ACH Authority
Current law establishes an ACH Advisory Committee to advise the government on “identification, assessment and management” matters, with final decision-making power resting
with a range of government ministers.83 The committee comprises 13 voting members.84
These must include a nominee from the Heritage Council of NSW, the NSW Aboriginal Land
73
NPWA, ss. 83; National Parks and Wildlife Act 1967 (NSW), s. 33D.
NPWA, s. 83(3).
75
NPWA, ss. 83, 85.
76
ACH Bill, clause 3(a)(i).
77
OEH 2017.
78
ACH Bill, clause 24.
79
ACH Bill, clause 25.
80
ACH Bill, clause 24(5).
81
Native Title Act 1993 (Cth).
82
NSW, “Protected Native Plant Licences,” https://www.environment.nsw.gov.au/licences-and-permits/pro
tected-native-plant-licences (accessed 28 October 2019).
83
NPWA, s. 2. See, for example, the minster for planning and public spaces regarding state significant
development and the minister for energy and environment regarding permits to harm Aboriginal cultural heritage.
84
NPWA, Schedule 9.
74
International Journal of Cultural Property
9
Council (created under state land laws), and the NSW entity representing local cultural
authorities recognized under federal law.85 Aboriginal individuals may self-nominate.86 The
current law requires the minister to appoint Aboriginal people involved in ACH at the local
level who have an understanding of ACH management issues.87 Despite the establishment of
the Advisory Committee, decision-making power in relation to “the protection of Aboriginal
objects and Aboriginal places in New South Wales” rests with the chief executive of the
OEH.88 This does not accord with the UNDRIP principles that emphasize Indigenous peoples’
right to control their cultural heritage.89
The ACH Bill, on the other hand, establishes an ACH Authority and a board to manage the
Authority’s affairs.90 The Authority will fall under the portfolio of a minister, but the Bill
expressly provides it will not be “subject to the control or direction of the Minister.”91 Aside
from stipulating that the minister will appoint board members, and requiring the minister
to appoint a representative of the NSW Aboriginal Land Council92 and to consult the minister
overseeing the NSW Aboriginal Land Council when appointing board members,93 the Bill
provides no further detail on the nomination and selection process.94 It does include a
footnote that the government intends the processes “to be community driven” to ensure
that there is “cultural legitimacy” and necessary “skill and expertise.”95
There are multiple concerns with these provisions (or lack thereof). First, an intent to
ensure a “community-driven” process for nominating board members is vague and noncommittal.96 The failure to prescribe a nomination process in the ACH Bill denies the
community the chance to comment on the proposed process. The final Bill presented to
Parliament should contain a nomination process that has been designed in consultation with
Aboriginal people.97 This is critical to ensure cultural legitimacy.98Alternatively, the Bill
could provide an interim method for appointing a board and prescribe that the interim
board stay in place until regulations provide a process for nominating a board that has been
designed with the community.
Second, the ACH Bill does not specify the status of the Authority beyond it being a NSW
government agency.99 This classification allows the Authority to secure the privileges of a
NSW government agency, such as financial support.100 However, the NSW rules regarding
government agencies prescribe different remuneration rates for board members depending
on the status of the agency,101 and the bill fails to clarify the Authority’s status. This allows
the minister to determine the board member remuneration rates “from time to time.”102
Considering the changeable nature of political priorities, the Bill should safeguard a
85
NPWA, Schedule 9.
NPWA Schedule 9.
87
NPWA Schedule 9.
88
NPWA, s. 85(1).
89
UNDRIP, Arts. 3, 4, 31.
90
ACH Bill, clause 8.
91
ACH Bill, clause 7.
92
ACH Bill, clause 8(4)
93
ACH Bill, clause 8(5).
94
ACH Bill, clause 8(3).
95
ACH Bill, clause 8(3), consultation note.
96
OEH 2017.
97
Stoianoff 2012.
98
Wright and Stoianoff 2018.
99
ACH Bill, clause 7(2).
100
Public Service Commission 2015.
101
Public Service Commission 2015.
102
ACH Bill, Schedule 1; see also Perry and Lingard 2018.
86
10
Kylie Lingard et al.
minimum status for the Authority to ensure a transparent process for determining member
remuneration.103
Third, the ACH Bill does not carry forward the current requirement that the minister only
appoint Aboriginal people to the Board if they are involved in ACH at the local level and have
an understanding of ACH management issues.104 While perhaps overly prescribed, the
composition of the current ACH Advisory Committee under the NPWA ensures engagement
with local cultural authorities or knowledge holders within Aboriginal communities. In
comparison, the Bill merely requires the minister to appoint “Aboriginal persons” to the
Board.105 The ACH Bill defines an “Aboriginal person” according to the three-step definition
most commonly used in Australia—namely, a person who “(a) is a member of the Aboriginal
race, and (b) identifies as an Aboriginal person and (c) is accepted by the Aboriginal
community as an Aboriginal person.”106 This definition allows for self-identification and
recognition,107 but additional clarification is required to ensure the appointment of individuals involved in ACH at the local level or who have an understanding of ACH management
issues.108 This is important since connection to Country is crucial for the proper management of ACH. This relates to the right to speak for Country and the Community: “[T]he right
to speak for Community should be held by Aboriginal community members descended from
the traditional custodians of the land.”109 As noted by one of the participants in the
consultations leading to the white paper referred to above,
[t]raditional owners should have first rights over anybody. The key group is the first
mob with respect to each area. You need proven connection to country—direct lineage
to the particular area. Aboriginal communities aren’t all the one clan. There are
differences in how clans, and members of clans are described.110
Fourth, the ACH Bill stipulates appointment processes that do not prioritize the voices of
local cultural authorities.111 First, the Bill vests the power to appoint board members in the
minister.112 The ACH Bill outlines three appointment processes that the minister must
comply with: the appointment of Aboriginal people, the appointment of a representative of
the NSW Aboriginal Land Council,113 and consultation with the minister overseeing the NSW
Aboriginal Land Council before making an appointment.114 The NSW Aboriginal Land
Council represents all Aboriginal people living in NSW, including Aboriginal people that
have moved to NSW from other states and territories. Although the NSW Aboriginal Land
Council also represents Aboriginal owners, being Aboriginal people registered as having
traditional or familial links to specific areas,115 the register of Aboriginal owners is largely
incomplete.116 This raises the concern that the NSW Aboriginal Land Council does not
sufficiently represent the voices of people with cultural authority to speak for ACH. Greater
103
104
105
106
107
108
109
110
111
112
113
114
115
116
Public Service Commission 2015.
NPWA, Schedule 9.
ACH Bill, clause 8.
ACH Bill, clause 5(1).
Gardiner-Garden 2003.
Wright and Stoianoff 2018.
UTS-Indigenous Knowledge Forum and North West Local Land Services 2014, 40.
UTS-Indigenous Knowledge Forum and North West Local Land Services 2014.
OEH 2018c.
ACH Bill, clause 8.
ACH Bill, clause 8(4).
ACH Bill, clause 8(5).
Aboriginal Land Rights Act 1983 (NSW), s. 171 (ALRA).
Perry and Lingard 2018; NSW Aboriginal Land Council 2018b.
International Journal of Cultural Property
11
government investment in completing the register would advance the cultural authority of
the NSW Aboriginal Land Council to speak for ACH. An additional requirement for the
minister to consult the NSW entity responsible for promoting the interests of local cultural
authorities recognized under federal law would help ensure the cultural legitimacy of the
Board and consistency with federal law.117
Of serious concern is that, although the minister must comply with the procedural
fairness rule that a person has a right to respond to a threat of removal,118 the minister
will have the power to remove a board member at any time, without reason.119 The
government provided three reasons for this power:
(1) The power is consistent with the minister’s power to appoint the Board.120
(2) The power is necessary given that the minister “is accountable to Parliament and the
public for the administration of the legislation.”121
(3) The power enables “the Minister to act as a ‘circuit breaker’ in the event of a
breakdown in communication between members.”122
These reasons are unconvincing. The power effectively enables the minister to control the
Authority by “unjustly”123 removing members with contrary views.124 This completely
undermines the clear statement in Clause 7 of the ACH Bill that the Authority is not subject
to ministerial control or direction.125 It also raises doubts as to whether, in practice, the
Authority will function any differently to the current Advisory Committee.
Local ACH consultation panels
Article 18 of the UNDRIP encourages colonial governments to recognize Indigenous
decision-making institutions. In NSW, the strong preference is for ACH decision-making
power to vest in local cultural authorities, being people with traditional links to the land.
Currently in NSW, the Aboriginal Land Rights Act 1983 vests Local Aboriginal Land Councils
(LALCs) with responsibility for local ACH, in the absence of registered Aboriginal owners for
that area.126 LALCs comprise members with contemporary, historical, or traditional links to
an area.127 They also operate within geographical boundaries that reflect local government
areas, not cultural groups.
On first glance, the proposed ACH Bill honors the preference for ACH decisions to rest
with local cultural authorities by creating local panels. On closer inspection, the Bill requires
the proposed ACH Authority to vest existing LALCs with the power to coordinate the
establishment of local panels.128 This does not address the concerns of some Aboriginal
people regarding the role of LALCs in ACH management.129 For example, during the
Aboriginal community consultations that were part of Recognising and Protecting
117
118
119
120
121
122
123
124
125
126
127
128
129
Native Title Act 1993 (Cth).
OEH 2018c.
ACH Bill, Schedule 1.
OEH 2018c.
OEH 2018c.
OEH 2018c.
NSW Aboriginal Land Council 2018b.
Perry and Lingard 2018.
ACH Bill, clause 7(1).
ALRA, ss. 171, 52(4).
ALRA, s. 54(2A).
ACH Bill, clause 13(4), consultation note.
Wright and Stoianoff 2018.
12
Kylie Lingard et al.
Aboriginal Knowledge Associated with Natural Resource Management, a project funded by
the North-West Local Land Services, concerns were raised regarding the involvement of
LALCs in the management of, and decision-making process in relation to, Aboriginal
knowledge.130 These concerns were based on the composition of the leadership of LALCs,
where representation from cultural knowledge holders in the communities was not
included.131
While it may be expedient to vest power to coordinate the establishment of local
panels in already established bodies, it cannot be assumed that LALCs fully represent the
voices of people with cultural authority to speak for ACH, while the register of Aboriginal
owners with traditional links to the land remains incomplete. This further justifies the
investment of resources to complete the register in order to provide a firmer foundation
on which to build local panels that are a “recognised source of cultural authority at the
local level.”132
Further, the ACH Bill provides that “procedures, policies and guidelines with respect
to the establishment, membership and operation of Local. … Panels are to be developed
by the ACH Authority through a process of consultation with the Aboriginal
community.”133 Consultation does not strictly reflect the intent of Article 19 of the
UNDRIP, being “free, prior and informed consent” to the adoption of relevant legislative
or administrative measures. However, the diversity of Aboriginal people in NSW may
make it difficult to secure consent from every person. Within the proposed centralized
system, one way to move closer towards informed consent would be to require the
Authority to make the proposed procedures available for public comment before
adoption. Another may be that the Authority put the proposed rules to the Aboriginal
people of NSW to vote on.
A final point regarding local panels is their advisory nature. While the ACH Bill vests local
panels with a role “in decisions that affect Aboriginal cultural heritage in relation to that
area or aspect,”134 it also states that local panels shall “advise the ACH Authority in relation
to that area or aspect” and advise the ACH Authority on various other matters, including
information to be included in the ACH Information System. By utilizing the terms “advise”
or “advice,” the ACH Authority is able to reach a decision that is contrary to the advice of the
local panels. Consequently, the ACH Bill has not secured the role of the local panels in
making decisions in relation to their ACH.135 This raises the question of whether the Bill
meets the requirements of Article 18 of the UNDRIP—namely, “Indigenous peoples have the
right to participate in decision-making in matters which would affect their rights, through
representatives chosen by themselves in accordance with their own procedures, as well as to
maintain and develop their own indigenous decision-making institutions.” This point in
turn raises questions as to the extent to which the ACH Bill advances its own aim of
establishing a legislative framework that reflects Aboriginal people’s responsibility for,
and authority over, ACH. In NSW, it is critical that decisions in relation to ACH are made by,
or with the free, prior, and informed consent of, local communities.136 Accordingly, the Bill
should be revised to reflect the need for local panels to consent to decisions that affect ACH
in their area.
130
131
132
133
134
135
136
UTS-Indigenous Knowledge Forum and North West Local Land Services 2014.
Wright and Stoianoff 2018.
OEH 2017.
ACH Bill, clause 17.
ACH Bill, clause 16(1)(b).
Perry and Lingard 2018; Wright and Stoianoff 2018.
UNDRIP, Art. 19.
International Journal of Cultural Property
13
Better information management
Currently, the NSW government administers the Aboriginal Heritage Information Management System (AHIMS). The AHIMS provides people with access to information on 93,000
Aboriginal objects and places and 13,500 ACH assessment reports.137 Anyone can submit
information on an Aboriginal object or place using a “site card.” The government reviews
the card to decide what information to upload.138 This includes whether to attach access
conditions, such as restricting access to secret or sensitive information.139
Issues with the current system include:
• while sacred, sensitive, or confidential information may be subject to access conditions,
it is not an offence to breach these conditions;140
• the government makes the final decision on what information to upload and the
conditions to attach, not the local cultural authorities;141
• despite the apparent number of records, the database is incomplete;142 and
• the AHIMS does not support ACH information unrelated to objects and places.
The NSW government recognizes that information management is critical to the management of ACH.143 Accordingly, the ACH Bill proposes to transfer ownership and
oversight of a new information system to the ACH Authority.144 The system will comprise
two databases, being a restricted access database and a publicly available online database.145 Registration is not limited to information on objects or places. The expectation is
that the public database will hold ACH assessment reports, management plans, local
maps, strategic plans, information on ACH values, and intangible ACH that is not widely
known.146 The restricted database can contain ACH information that has special access
requirements under customary law.
Self-determination is central to the operation of the UNDRIP, and this principle has been
adopted in Australian approaches to the management of Aboriginal and Torres Strait
Islander cultural heritage in instruments such as the Australian Institute of Aboriginal
and Torres Strait Islander Studies’s (AIATSIS) Code of Ethics for Aboriginal and Torres Strait
Islander Research.147 Culturally appropriate information systems support decision making
by Aboriginal people. 148 For example, databases can record intangible ACH to enable
sharing with future generations. They can also create legal rights, whereby the registrant
has the legal right to control access to, and use of, the intangible ACH. However, databases
also present a significant risk to ACH. For instance, providing access to one person can lead
to inadvertent disclosures to unauthorized third parties. Databases can also enable the
movement of information and knowledge into the public domain and out of the control of
137
OEH 2019.
OEH 2019.
139
OEH 2019.
140
NPWA, s. 90Q.
141
OEH 2017.
142
NSW Aboriginal Land Council 2018a.
143
OEH 2017.
144
OEH 2018b.
145
ACH Bill, clause 19(3).
146
ACH Bill, clauses 19(4), 36(3); OEH 2017.
147
Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Code of Ethics for Aboriginal and
Torres Strait Islander Research (2020), Principle 1. The AIATSIS is the Australian Institute for Aboriginal and Torres
Strait Islander Studies and is a leading organization in the field of Aboriginal and Torres Strait Islander research and
cultural heritage.
148
OEH 2017.
138
14
Kylie Lingard et al.
Aboriginal people.149 Unfortunately, despite the transfer of ownership and administrative
responsibility to the ACH Authority, the proposed system does little to minimize these risks.
The approach to documenting ACH as proposed in the Bill is flawed for three key reasons.
First, decisions to register ACH are not subject to the prior informed consent of local cultural
authorities or knowledge holders. Second, access is not restricted to those authorized by
local cultural authorities, and, third, the databases may operate to facilitate the exploitation
and misappropriation of ACH, especially intangible ACH, contrary to the wishes of local
cultural authorities.
The ACH Bill provides few details on how the Authority is to maintain and establish the
system or to regulate the use and collection of intangible ACH.150 It instead tasks the
Authority with developing rules regarding collection, registration, access, and use.151 This
positions the Authority as the arbiter on important decisions regarding local intangible
ACH. For example, the Authority may delegate the registration function of the restricted
database to a single member of the Authority, a LALC, a NSW government agency, a local
council, or anyone else to be determined.152 Decisions on whether to register intangible ACH
may require consideration of sensitive matters. It is inappropriate to allow the Authority to
exercise this function, let alone to delegate it.
Unfortunately, the ACH Bill is silent on the rights of individuals or communities to
challenge the registration of intangible ACH or to request the removal of ACH registered
contrary to community protocols or customary law.153 Further work is required to ensure
the system operates in a culturally appropriate fashion and in accordance with the UNDRIP
principle of informed consent by local cultural authorities to the registration of their
intangible ACH.154 As identified in the AIATSIS Code of Ethics, Aboriginal people have the
right to control the use, and protect the integrity, of their cultural heritage as well as
maintain the secrecy and control the recording of intangible ACH.155
Regarding the restricted access database, the ACH Bill permits access by local panels, the
Board of the ACH Authority, persons authorized by the Board, and other persons yet to be
determined.156 Any provision that preempts who can access restricted ACH requires
reconsideration. Such provisions undermine the authority of local Aboriginal people and
expressly permit access to restricted information by people without cultural authority.
Consistent with the UNDRIP, the ACH Bill should prohibit access to restricted information to
those holding proof of informed consent from the person or people with the cultural
authority to provide that consent. Given that customary law may also restrict access to
intangible ACH to certain genders, it is suggested that the Authority develop separate female
and male registers and appoint a male and female registrar to oversee these registers.157 The
restricted database must also be exempt from the operation of freedom of information
laws.158 This is particularly important to protect culturally significant sites from damage
and to prevent the publication of sacred ACH information without authorization from local
cultural authorities. Public disclosure of information obtained via a freedom of information
149
150
151
152
153
154
155
156
157
Dutfield 1999; Drahos 2014; Wright and Stoianoff 2018.
Perry and Lingard 2018; Wright and Stoianoff 2018.
ACH Bill, clause 19(3).
ACH Bill, clause 13.
Wright and Stoianoff 2018.
UNDRIP, Arts. 18, 19, 31. AIATSIS, Code of Ethics, principle 1.
AIATSIS, Guide to Applying: The Code of Ethics for Aboriginal and Torres Strait Islander Research (2020), 6-8.
ACH Bill, clause 19(3)(a).
Wright and Stoianoff 2018; see also UTS-Indigenous Knowledge Forum and North West Local Land Services
2014.
158
Such as the Government Information (Public Access) Act 2009 (NSW).
International Journal of Cultural Property
15
request may also prevent communities from obtaining intellectual property rights, such as
patent protection, in relation to their intangible ACH.159
There are multiple issues with the public database provisions. For instance, the ACH Bill
requires the ACH Authority to prepare “maps containing spatial data about ACH.”160 The
objective of these maps is to identify areas of known or potential ACH values161 and to
provide information for use in decision making by those “engaged in land-use planning,
development assessment and land management or development activities.”162 The ACH Bill
requires the Authority to make the local maps available on the public database.163 While this
approach may be intended to balance the interests of Aboriginal communities and third
parties seeking access by improving transparency and making information readily available,
this may make details about ACH, including information about culturally significant sites,
publicly available, consequently allowing third parties to identify and locate sites without
permission.164
A major issue is that the public database may contain intangible ACH that is not
currently widely known. This is because the ACH Bill requires certain entities to apply to
the Authority to register this ACH on the public database if the entity wishes to obtain
the exclusive right to use that ACH for commercial purposes.165 The Bill makes it an
offence for anyone to knowingly use that ACH for commercial purposes, without permission from the registered entity in the form of an agreement (a copy of which must be
provided to the Authority and included in the system).166 There are multiple issues with
these provisions. First, an individual may have sole cultural responsibility for certain
intangible ACH;167 however, the ACH Bill does not expressly allow individuals to register
their ACH. While the Bill allows the government to develop regulations to allow
individuals to register for exclusive rights to exploit secret ACH,168 individual knowledge
holders must rely upon the government to exercise this power. The ACH Bill should
provide for individuals with cultural authority to apply directly to register their intangible ACH.169 Second, the Bill allows a range of groups to register ACH that is currently
not widely known. Some of these groups comprise non-Aboriginal members—for example, Boards of Management of National Parks comprise Aboriginal people, government
representatives, and a neighbor of the park—which shows a lack of support for Aboriginal
ownership of ACH, a key objective of the proposed Bill.170
Third, many communities may share the same intangible ACH. The ACH Bill allows a
single entity to secure exclusive rights to exploit that ACH without the consent of, and to the
exclusion of, other cultural authorities with identical or similar knowledge.171 These entities
may not share the aspiration to make the knowledge publicly available or to benefit from its
commercial use. Because the knowledge loses its secrecy once registered,172 non-consenting
cultural authorities will lose the opportunity to obtain intellectual property rights in
159
160
161
162
163
164
165
166
167
168
169
170
171
172
Perry and Lingard 2018; Wright and Stoianoff 2018.
ACH Bill, clause 20(1).
OEH 2017.
ACH Bill, clause 20(2).
ACH Bill, clauses 19(4)(f), 20(5).
Wright and Stoianoff 2018.
ACH Bill, clause 36(3).
ACH Bill, clause 38.
Wright and Stoianoff 2018.
ACH Bill, clause 37.
Wright and Stoianoff 2018.
ACH Bill, clause 37; Perry and Lingard 2018.
ACH Bill, clause 38(1).
ACH Bill, clause 36(3).
16
Kylie Lingard et al.
relation to that knowledge, such as patent protection.173 The requirement that the Authority consult “relevant” local panels174 before registering secret ACH is insufficient to avoid
this risk. It is imperative that the ACH Bill rectify the absence of mechanisms for people to
challenge the registration of secret ACH or to request the removal of ACH registered
contrary to their community protocols.
Fourth, an approved entity only secures exclusive economic rights in exchange for public
disclosure.175 It is not an offence for someone to use that knowledge for a non-commercial
purpose, such as publication in an academic journal. The ACH Bill imposes no obligation on
non-commercial users to acknowledge the database or registered knowledge holders as the
information source. This allows commercial developers to come across the knowledge in an
academic publication without knowing the ACH came from the database. This lack of
knowledge will exempt the third party from the offence of knowingly using registered
ACH for commercial purposes.176
Finally, communities should not be required to register their information in order to
obtain protection. This is inconsistent with the UNDRIP principles,177 and there are a
number of reasons why communities may choose not to register their ACH. These include
a lack of trust in the ACH Authority or the technology, the perception that databases
facilitate misappropriation of intangible ACH, or an inability to meet the registration
requirements.178 The framework should provide protection for all intangible ACH, registered or not. Databases such as the proposed system must be created and used with caution
in the absence of legal protections for database content. While Australian copyright law
offers limited protection for the way information is organized and stored, it does not extend
to protecting database contents.179 A third party can examine the contents of the database
and use that information to their advantage.180 This absence of protection for database
content may result in limited participation in the system by Aboriginal communities,181 as is
the case in India where local communities have voiced concerns that the contents of
People’s Biodiversity Registers will be misappropriated and exploited because of gaps in
intellectual property protection.182
Given the risks with public disclosure of secret ACH, and limits to current intellectual
property law, the ACH Bill should be revised to require the registration of ACH that is not
widely known on the restricted database and to specify that access to this database be limited
to those holding proof of informed consent from local cultural authorities. Failure to make
these revisions will result in a situation where the new information system contributes to
the moving of secret ACH into the public domain and out of the control of Aboriginal people.
Improved protection, management, and conservation
The current law contains the limited objective of conserving Aboriginal objects and
places.183 It provides three avenues to advance this objective: declarations, voluntary
173
Wright and Stoianoff 2018; Perry and Lingard 2018.
ACH Bill, clause 36(4).
175
ACH Bill, clause 36(3).
176
ACH Bill, clause 38.
177
UNDRIP, Arts. 18, 19 and 31.
178
Wright and Stoianoff 2018.
179
Nine Network Australia Pty Ltd v. Ice TV Pty Ltd, [2007] FCA 1172; see also Merle et al. 2004.
180
The form in which the contents of a database are expressed may be protected as a literary work under the
Copyright Act 1968 (Cth), but not the knowledge contained within the content.
181
Kohli, Fareedi, and Bhutani 2009.
182
Kohli, Fareedi, and Bhutani 2009.
183
NPWA, s. 3.
174
International Journal of Cultural Property
17
conservation agreements, and an offence for harming an Aboriginal object or place without
a permit (or reliance on another specified defense).184 Although the ACH Bill aims to
establish effective processes for conserving and managing ACH,185 it proposes three very
similar mechanisms to advance these new aims: declarations, voluntary conservation
agreements, and an offence of harming ACH without a management plan. This
section examines each of the proposed mechanisms to determine if they improve upon
the current framework and advance the objects of the Bill.
Declarations
The current law allows anyone to ask the minister for the environment to declare an area of
cultural significance to Aboriginal people.186 The purpose of the declaration is to preserve,
protect, and prevent damage to Aboriginal objects or places in that area.187 Upon receipt of
an application, the chief executive of the OEH must consult with the relevant Aboriginal
people and landholders and report to the minister on the cultural significance of objects or
places in that area.188 The minister then decides whether to approve the application. The
minister’s decision is final. The minister is not required to provide reasons for any refusal,
and there is no right to a merits review.189 There are currently nine declared areas.190 It is
unlawful to mine in declared areas, “except as expressly authorised by an Act of Parliament”
or unless the minister tables a notice of intent to approve the mining application before both
houses of Parliament.191
Issues with the current declaration system include:
• the Chief Executive of the OEH assesses cultural significance;
• the minister decides whether to declare an area for special protection;
• the minister does not need to consider any specified matters or provide reasons for any
refusal; and
• there is no right for any Aboriginal person to seek a review of the merits of the
minister’s decision to refuse to declare an area (“merits review”).
The ACH Bill proposes a similar process for making declarations, but the key differences are:
• declarations can cover objects as well as places192 and
• the ACH Authority is the only entity that can make a recommendation to the minister
to declare an object or place.193
The ACH Bill retains ministerial authority over the final decision.194 It also continues to
excuse the minister from prioritizing the objectives of the Bill and from providing reasons
184
185
186
187
188
189
190
191
192
193
194
NPWA, ss. 69B, 84, 86, 90.
ACH Bill, clause 3(b).
NPWA, s. 71AS, 71AV, 84.
NPWA, s. 62.
NPWA, s. 71AT.
NPWA, Part 4A.
NPWA, Schedule 14.
NPWA, ss. 64, 41.
ACH Bill, clause 18(1).
ACH Bill, clause 18(1).
ACH Bill, clause 18(1).
18
Kylie Lingard et al.
for any refusal. There remains no right for any party to seek a merits review of the minister’s
decision.195
The proposed declaration process contains few improvements on the current framework.
The extension of declarations to objects is arguably no different to the current capacity to
declare an area in order to protect objects contained within it. The ACH Bill transfers
administrative responsibility for making recommendations to the Authority. Vesting the
central Authority with the sole right to make recommendations does not advance the role of
local cultural authorities in ACH decision making. It may also cause friction between the
local panels and the Authority if the Authority refuses a recommendation request. The
Authority may have to refuse a request if it has insufficient funds to carry out an ACH
assessment prior to making a recommendation. This is a real risk given that the Bill does not
guarantee the transfer of funds equal to that expended by the OEH in preparing assessment
reports. There seems to be no logical reason why the Bill cannot vest (culturally appropriate)
local panels with the authority to make recommendations.
The government’s explanation for retaining ministerial control over declaration decisions is also problematic. The justification is that the minister is accountable to Parliament
and the people, and declarations “provide a high level of permanent protection” that may
affect private and public land.196 This does not explain why the ACH Bill absolves the
minister from accountability to Aboriginal people by not requiring the minister to prioritize
the objectives of the Bill or provide written reasons for any refusal. It is possible to achieve a
more sophisticated compromise of interests. One possibility is to reserve final decisions for
declarations affecting private land to the minister and to reserve declarations affecting
public land to the Authority. This would preserve the property rights system and address
potential concerns of private property owners. In each case, the decision maker should be
required to prioritize the objectives of the Bill and provide written reasons for the decision.
Local panels, the Authority, private landholders, and the minister should have access to
merits review for decisions contrary to their interests. The costs involved in such an action
will motivate all decision makers to consider the interests of others.
Conservation agreements
Currently, a landholder (owner, manager, or lessee) can enter into a voluntary conservation
agreement with the minister to protect ACH on that land.197 The minister can make an order
varying or terminating the agreement if they are of the opinion that the area is no longer
needed for, or capable of, protecting ACH.198 The minister can also make an order varying or
terminating the agreement if it is incompatible with a development proposal by a public
authority in circumstances where there is no practicable alternative to the proposal or the
development is for an essential public purpose or purpose of special significance to the
state.199 No compensation is payable because of an order to vary or terminate an agreement.
The ACH Bill provides for voluntary ACH conservation agreements between the ACH
Authority and landholders.200 As with ACH declarations, the ACH Bill transfers administrative responsibility for entering into conservation agreements to the ACH Authority, which
improves upon the current framework that vests the minister with the authority to enter
195
ACH Bill, clauses 34(8), 51.
OEH 2017.
197
NPWA, Part 4, Division 12; NPWA, ss. 69B(1), 69C(1); Aboriginal Culture and Heritage Reform Working
Party 2013.
198
NPWA, s. 69D.
199
NPWA, s. 69I.
200
ACH Bill, clause 28(1).
196
International Journal of Cultural Property
19
into conservation agreements. However, the Bill does not guarantee the necessary funding
for the Authority to carry out its functions.201 The Bill allows the minister to make an order
varying or terminating an agreement deemed incompatible with a mining or petroleum
license202 or development proposal by a public authority.203 The minister is not required to
consider the objectives of the Bill or provide written reasons for these decisions.204 The
Authority has no right to merits review or specified access to dispute resolution processes.205
The continued ministerial discretion to vary or terminate an agreement deemed incompatible with the interests of a public authority or mining proponent undermines the
authority of the contracting parties. Further, it poses a direct threat to ACH given the
number of permits to destroy ACH that are issued to public authorities each year206 and the
potential harm to ACH by mining activities. Despite the government’s rationalizing that
mining laws offer sufficient protection for ACH,207 these laws do not require mining proponents to negotiate activities on land subject to an ACH conservation agreement. It is
unclear why the ACH Bill does not require a public authority or mining proponent to follow
the same assessment pathway that others must follow (see discussion below). This would
allow the Authority to negotiate the activity and/or compensation or offset arrangements
for any agreed harm. This aligns with the UNDRIP principles that encourage Aboriginal
consent to harm ACH and Aboriginal people’s right to “just, fair and equitable
compensation” for unauthorized ACH destruction.208 At a minimum, the Bill should:
• require the minister to prioritize the ACH Bill’s objectives when making a decision
affecting an ACH conservation agreement;
• require the minister to reject public development proposals on land subject to an ACH
conservation agreement, unless the proposal is for an essential public purpose or
purpose of special significance to the state;
• require the minister to provide reasons for varying or terminating an ACH conservation agreement; and
• allow the Authority to seek merits review of any order to vary or terminate an ACH
conservation agreement.
Assessment pathway and management plans
Currently, it is an offence to harm an Aboriginal object or place without an Aboriginal
Heritage Impact Permit (AHIP) (or reliance on another defense, as discussed below).209 The
regime is subject to the criticism that it authorizes the destruction of ACH because the OEH
has approved 95–97 percent of AHIP applications.210 AHIPs also only cover objects and
places, and major projects are exempt from AHIP requirements.211 Further issues lie in the
AHIP process. A proponent must apply for an AHIP if an Aboriginal object is uncovered
201
202
203
204
205
206
207
208
209
210
211
ACH Bill, clauses 63–65.
ACH Bill, clause 31(7).
ACH Bill, clause 34.
Compare NPWA, s. 69D(5).
NPWA, s. 34(8); ACH Bill, clause 51.
See OEH 2020a.
Mining Act 1992 (NSW); Petroleum (Onshore) Act 1991 (NSW).
UNDRIP, Art. 28.
NPWA, s. 86.
Schnierer, Ellsmore, and Schnierer 2011; OEH 2020a.
Schnierer, Ellsmore, and Schnierer 2011.
20
Kylie Lingard et al.
during development or if a search of the AHIMS database prior to commencing work reveals
the presence of an Aboriginal object or place on the proposed site and the work is likely to
harm that object or place.212 This “due diligence” search is not a legal requirement and does
not need to occur before the proponent lodges a development application or obtains
development consent.213 However, it is a defense to the offence of harming ACH if a
proponent checked the AHIMS database “and reasonably determined that no Aboriginal
object would be harmed.”214 A proponent may alternatively rely on the defense “that the act
or omission constituting the alleged offence is prescribed by the regulations as a low impact
act or omission.”215
If an AHIP is required, a proponent must consult with any Aboriginal person who
registers an interest in being consulted.216 The proponent must then prepare a report that
assesses the cultural significance of ACH on the site.217 In deciding whether to grant the
AHIP, the Chief Executive of the OEH “must consider” the report, the results of any
consultation, and whether the consultation substantially complied with requirements set
out in the National Parks and Wildlife Regulations 2019.218 A failure to comply with the
consultation requirements does not invalidate an AHIP.219 The NPWA makes no provision
for an Aboriginal person or group to seek a merits review of the OEH’s decision to
permit harm.
The ACH Bill tries to redress the criticisms of the AHIP system by making it an offence
to harm ACH without a management plan. The Bill provides that the ACH Authority may
order the drafting of a management plan if the assessment process reveals a likelihood of
harm to ACH.220 Figure 1 captures the management plan pathway. The new pathway
includes some encouraging provisions. Local panels prepare local maps that form the
basis of the new due diligence check. Although the proponent still prepares the assessment report, the ACH Authority or Land and Environment Court is the source of approval
for any subsequent plan. Negotiation with local people is a move away from the current
consultation model.221
However, there are some serious concerns. First, a proponent can secure development
consent by providing a management plan with which the Local Panel does not agree. This
circumvents the requirement to negotiate a plan. The ACH Bill continues to exempt major
projects from the pathway requirements.222 Major projects include mining, coal seam gas
production, ports, electricity stations, and waste facilities.223 The OEH offers a goodwill
promise that the process for assessing major projects will “adopt the key features of the
assessment pathway,”224 but the Bill contains no provisions to ensure this. Finally, the ACH
Bill continues to prioritize economic interests by requiring management plans and the
Authority to balance the interests of proponents and Aboriginal people.225 This conflicts
212
OEH 2010.
NSW Aboriginal Land Council 2018a.
214
NPWA, s. 87(2).
215
NPWA, s. 87(4).
216
National Parks and Wildlife Regulations 2019 (NSW), Reg. 80C(1) (NPWR); see also NPWA, s. 90N.
217
OEH 2009; Department of Environment, Climate Change and Water NSW 2011, 2013; NPWR, Reg. 80D(1); see
generally Lingard 2012.
218
NPWA, s. 90K(1). See NPWR.
219
NSW Aboriginal Land Council 2018a; NPWR, Reg. 80C.
220
ACH Bill, clause 46.
221
Schnierer, Ellsmore, and Schnierer 2011.
222
ACH Bill, clause 60(1)(a); Burra Charter, 2013.
223
State Environmental Planning Policy (State and Regional Development) 2011, Schedule 1.
224
OEH 2017.
225
ACH Bill, clauses 48(2), 49(4).
213
International Journal of Cultural Property
21
Proponent reviews local ACH maps on the new public database.
If maps show site is likely to contain ACH, proponent must notify ACH Authority and consult with relevant
Local Panels to obtain more information.
If there is a likelihood of harm to ACH, proponent and Local Panel must assess extent of likely harm and
discuss options for avoiding or minimising it.
Proponent must submit detailed ACH assessment report to ACH Authority that outlines the likely harm and
options for avoiding or minimising it.
Proponent cannot lodge development application until completing the above steps ('assessment pathway'). If
pathway determines need for ACH assessment report, proponent must attach report to development
application.
ACH Authority may alternatively direct proponent to negotiate a management plan with the Local Panel.
Parties must conduct plan negotiations ‘in good faith’, ensure plan promotes objectives of the Bill, and
outline how Aboriginal people will ‘benefit’ from ‘obligations’ of the proponent.
If both parties agree, proponent submits plan to Authority for approval. If parties fail to agree, either party
may ask Authority to appoint a mediator to resolve dispute.
If parties still fail to agree, proponent may request Authority approve plan but Authority must have regard to
the Bill’s objectives and impact of plan on Aboriginal community, proponent and public.
A proponent can seek merits review by the Land and Environment Court of the Authority’s refusal to
approve a plan.
If Authority has ordered a management plan, proponent must attach approved plan to development
application, or draft plan awaiting approval from Authority, or draft that was not agreed to by the Local Panel
within a certain time (Bill does not specify amount of time).
Figure 1. Proposed ACH assessment pathway (courtesy of the authors).
with the proposed objectives of the Bill that prioritize the interests of Aboriginal people. The
ACH Bill continues to prioritize the interests of proponents by vesting them with the right to
appeal to the Land and Environment Court against a refusal by the Authority to approve a
22
Kylie Lingard et al.
plan.226 Allowing proponents to access merits review may encourage the Authority to
approve plans to avoid the costs of defending such an action in court.
Biological heritage
Native plants form part of ACH. The Convention on Biological Diversity227 and the Nagoya
Protocol228 support the right of Indigenous people to consent to the access and use of their
traditional biological resources and to share in the benefits arising from use, to the extent that
this right is consistent with local property laws. Australian property law vests ownership of
traditional biological resources in the landowner. Accordingly, compliance with these international instruments would only require consent from Aboriginal people if they were also the
landowner. However, the UNDRIP contains no such limit regarding local property laws.
The ACH Bill does nothing to advance the UNDRIP right of Aboriginal people to consent to
the access and use of their traditional biological resources and to share in the benefits
arising from use.229 The recent Biodiversity Conservation Act 2016 (NSW) also ignored these
access and benefit sharing principles.230 A pragmatic compromise that respects the rights of
private landowners is to require any person seeking access to traditional biological
resources from public lands, or any publicly funded genetic resource collection, to secure
the consent of the ACH Authority. Such consent would allow the Authority to negotiate
benefit-sharing arrangements on behalf of relevant local panels with the person seeking
access to the resource.231 Where the resource is available from public lands (or publicly
funded genetic resource collections) and private landholdings, it is further worth considering a stipulation that access must be sought from the public lands or collections first.
Whether failure to comply with that requirement is sanctioned by a fine would need further
consideration.
Greater confidence in the regulatory system
Offence provisions
Offence provisions play an important role in achieving the objects of the regulatory regime,
including the protection of ACH.232 The wording used within offence provisions may result
in breaches being difficult to establish. The maximum penalty for an offence needs to be high
enough to provide an effective deterrent, again to ensure protection of ACH. Table 1 outlines
the main NPWA’s ACH offences and maximum penalties and the comparable offences
proposed in the ACH Bill.233
226
ACH Bill, clause 52.
Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79.
228
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
Their Utilization, 12 October 2014, 2161 UNTS 447.
229
UNDRIP, Art. 31.
230
Biodiversity Conservation Act 2016 (NSW).
231
Perry and Lingard 2018.
232
See Chief Executive, Office of Environment and Heritage v. Clarence Valley Council, (2018) 236 LGERA
291, paras 26–28.
233
All values are in Australian dollars.
227
International Journal of Cultural Property
23
Table 1. Current and proposed ACH offences
Current (NPWA)
Proposed (Bill)
Offence
Maximum penalty
Offence
Maximum penalty
N/A
N/A
Knowingly use registered intangible
ACH for commercial purposes
without agreement of registered
holders234
Corporation: $1.65
million
Individual: $330,000
Tier 1
Harm or desecrate
an object that
the person
knows is an
Aboriginal
object235
Corporation: $1.1
million
Individual: $275,000
and/or 1 year
imprisonment or
$550,000 and/or 2
years imprisonment
in circumstances of
aggravation236
Intentionally/recklessly harm an
Aboriginal object, ancestral
remains, or declared ACH that the
person knows is such, provided
harm is not trivial or negligible237
Corporation: $1.65
million
Individual: $330,000
and/or 1 year
imprisonment
Tier 1
Harm an
Aboriginal
object238
Corporation: $220,000
Individual: $55,000 or
$110,000 in
circumstances of
aggravation240
Corporation: $1.1
million
Individual: $550,000
and/or 2 years
imprisonment
Harm an Aboriginal object, ancestral
remains, or declared ACH,
provided the harm is not trivial or
negligible239
Corporation:
$660,000
Individual: $132,000
Tier 2
Corporation: $22,000
plus $2,200 daily
Individual: $11,000 plus
$1,100 daily
Failure to notify ACH Authority “as
soon as practicable” of location of
Aboriginal object, ancestral
remains, or other tangible
materials243
Corporation:
$440,000
Individual: $88,000
Tier 3
Harm or desecrate
a declared
place241
Failure to notify
Chief Executive
“within a
reasonable
time” of the
location of
Aboriginal
object242
Offence provisions
The ACH Bill continues the main offence provisions, with proposed changes to the
maximum penalties and wording of some offences. Some new offences are proposed.
234
ACH Bill, clause 38(1).
NPWA, s. 86(1).
236
ACH Bill, clause 41(1).
237
NPWA, s. 86(3).
238
NPWA, s. 86(2).
239
ACH Bill, clause 41(2).
240
“Circumstances of aggravation” arise where the offence was “committed in the course of carrying out a
commercial activity” or the offender has previously been convicted of a s. 86 offence. NPWA, s. 86(3).
241
NPWA, s. 86(4).
242
NPWA, s. 89A.
243
ACH Bill, clause 27(2).
235
24
Kylie Lingard et al.
Currently, it is an offence to harm or desecrate an object that a person knows is an Aboriginal
object.244 The proposed provision introduces an additional mens rea element into this
“knowing” offence—namely, that the person intentionally or recklessly harmed the tangible
ACH (see Table 1).245 This will make the offence more difficult for the prosecutor to
establish.246 Indeed, a previous version of the “knowing” offence in place before 2010 posed
difficulties in terms of establishing intention, leading to few successful prosecutions.247
Additionally, the proposed “knowing” offence expressly provides that an offence is only
committed if the “the harm is not trivial or negligible,”248 a term undefined by the ACH Bill.
It is noted that, currently, the NPWA’s definition of “harm” (which is referred to within the
offence provisions) provides that “trivial or negligible” acts or omissions do not constitute
harm.249 Nevertheless, uncertainty within the offence wording creates doubt regarding
what constitutes a breach of the legislation. This affects the enforceability of the regime.
The inclusion of a requirement for the prosecutor to establish that the harm is not
trivial or negligible is arguably unnecessary within the “knowing” offence that requires
proof of mens rea and attracts the highest maximum penalty under the ACH Bill. Given
the higher cost involved in establishing mens rea offences, the exercise of prosecutorial
discretion will likely result in the proposed “knowing” offence being reserved for
serious breaches. The new strict liability offence of harming tangible ACH also requires
proof that “the harm is not trivial or negligible.”250 Other strict liability environmental
and planning law offences that may potentially encapsulate very minor breaches do not
expressly exclude trivial harm. For instance, the offence of “picking” a threatened
species of plant includes, by the definition of “pick,” to injure the plant.251 This could
involve a very minor injury, yet there is no exclusionary provision for “trivial or
negligible” harm. Again, the exercise of prosecutorial discretion acts as a safeguard to
prevent prosecution of “minor” or “technical” breaches. The offence provisions should
be reconsidered to provide greater certainty and confidence in the regime and ensure
consistency with other offences.
The ACH Bill continues the equivalent of a number of existing defenses, such as where the
action was authorized under an ACH management plan, where there is compliance with a
code of practice, and where acts of low environmental impact are specified in the regulations.252 There has been criticism regarding the inclusion of particular defenses. For
instance, Laurie Perry and Kylie Lingard argue that the inclusion of the defense for acts
of low environmental impact is inappropriate in “an Act intended to protect ACH.”253 The
scope of the defense may require reconsideration when the regulations are drafted.
Maximum penalties
The ACH Bill creates four tiers of monetary penalties, with Tier 1 constituting the highest
level.254 Imprisonment applies to some offences (see Table 1). The maximum penalty
244
245
246
247
248
249
250
251
252
253
254
NPWA, s. 86(1).
ACH Bill, clause 41(1).
OEH 2018a, quoting the NSW Aboriginal Land Council.
See OEH 2012; Packham 2014.
ACH Bill, clause 41(1)(c).
NPWA, s. 5(1).
ACH Bill, clause 41(2).
Biodiversity Conservation Act 2016, ss. 1.6(1), 2.2(1).
ACH Bill, clause 42-44.
Perry and Lingard 2018, 20.
ACH Bill, clause 119.
International Journal of Cultural Property
25
“reflects the “public expression” by Parliament of the seriousness of the offence.”255 It also
“provides a sentencing yardstick” used “to measure the relevant features of a particular
instance of an offence against a worst case” deserving of the maximum.256 The maximum
penalty also acts as a deterrent for potential offenders.257
While the ACH Bill increases the maximum penalty for some offences, it reduces the
maximum for others. For instance, the current offence of harming a declared Aboriginal
place258 has a maximum penalty of $1.1 million for corporations and $550,000 and/or two
years imprisonment for individuals.259 The proposed offence of harming declared ACH260
carries a maximum penalty of $660,000 for corporations and $132,000 for individuals.261
Imprisonment does not apply. The ACH Bill also reduces the maximum penalty for an
individual who intentionally or recklessly harms an Aboriginal object.262 The ACH Bill
eliminates the current doubling of the maximum penalty for individuals in “circumstances
of aggravation” and reduces the maximum penalty for this offence from $550,000 and/or
two years of imprisonment to $330,000 and/or one year of imprisonment. Given that the
NSW Parliament increased ACH penalties in 2010,263 after criticism of previously low
maximums,264 it is surprising that the OEH did not explain the proposed reduction to some
penalties.265 The reduced maximum penalty implies that the public now views ACH offences
less seriously. This view is inconsistent with the literature and the objective of improving
public respect for ACH.266
It is also curious that the penalties in the ACH Bill are lower than the penalties prescribed
for similar offences in environmental and planning laws. For instance, if a developer
intentionally breaches an ACH protection condition contained within a development
consent, the planning law prescribes a maximum penalty of $5 million for corporations
and $1 million for individuals.267 The maximum penalties proposed for intentionally
harming ACH are much lower, despite the fact that ACH is harmed in either instance. The
proposed ACH penalties require further consideration to ensure consistency with related
offence regimes.
Civil enforcement
The ACH Bill continues to allow any person to commence proceedings in the Land and
Environment Court to remedy or restrain a breach, or a threatened or apprehended breach,
of the legislation.268 The court has wide powers to “make such orders as it thinks fit to
remedy or restrain the breach,” including suspension of an ACH management plan.269
255
Camilleri’s Stock Feeds Pty Ltd v. Environment Protection Authority, (1993) 32 NSWLR 683, 698, citing R. v. H.,
(1980) 3 A Crim R 53, 65; OEH 2017.
256
Bankstown City Council v. Hanna, (2014) 205 LGERA 39, para. 58, citing Markarian v. The Queen, (2005)
228 CLR 357, para. 31; R. v. Campbell, [2014] NSWCCA 102, para. 28.
257
OEH 2017.
258
NPWA, s. 84.
259
NPWA, s. 86(4).
260
ACH Bill, clause 18(1)(a).
261
ACH Bill, clause 41(2).
262
See NPWA, s. 86(1); ACH Bill, clause 41(1).
263
See National Parks and Wildlife Amendment Act 2010 (NSW).
264
See Packham 2014.
265
See OEH 2017.
266
See, e.g., Packham 2014; Butterly and Pepper 2017.
267
Environmental Planning and Assessment Act 1979 (NSW), s. 9.52.
268
ACH Bill, clauses 131, 132(1).
269
ACH Bill, clauses 132(3), (4).
26
Kylie Lingard et al.
Additionally, the ACH Authority, or person acting with its written consent, can take civil
enforcement proceedings to remedy or restrain a breach of any ACH conservation agreement or ACH management plan.270 Again, the court has wide powers to remedy or restrain
the breach.271 Significantly, this includes the power to award damages against the landowner to which the agreement or plan applies in circumstances where the breach was
intentional, reckless, or negligent.272 The provision leaves some uncertainty regarding the
damages that may be claimed—for instance, whether damages for emotional harm can be
sought. Further clarity is required if the provision is to operate effectively.
Adequate funding to monitor and enforce the law
There has been criticism regarding a lack of monitoring and enforcement action under the
current regime, with only a small number of prosecutions to date.273 As Alison Packham has
argued, “[o]ffences and penalties for breach are toothless without adequate monitoring and
enforcement procedures.”274 Criminal and civil enforcement are expensive, with legal costs
potentially limiting the extent of enforcement action. Accordingly, it is important that
adequate funding is provided to effectively monitor and enforce the new regime275—
through both civil and criminal enforcement mechanisms—in order to achieve the ACH
Bill’s objectives of establishing effective processes for conserving and managing ACH, for
regulating activities that may cause harm to ACH, and for promoting respect for ACH.276
Adequate funding is also essential to advancing the guarantee under Article 4 of the UNDRIP
that “Indigenous peoples … have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and means for financing their
autonomous functions.”
Conclusion
The ACH Bill contains some improvements upon the current legal framework, which include
new objectives that recognize Aboriginal ownership of ACH and the need for a legal
framework that reflects Aboriginal authority over, and responsibility for, ACH; a definition
of intangible ACH; the creation of a new information system and governance structures for
that system; and the ACH Authority’s approval of management plans. These improvements
appear to advance the objectives of the Bill—namely, the broader recognition of ACH values,
decision making by Aboriginal people, better information management, and improved
protection, management and conservation of ACH. They also appear to advance the UNDRIP
principles, especially informed consent to measures that may affect ACH and participation
“in decision-making in matters affecting [Aboriginal peoples] rights, through representatives chosen by themselves and in accordance with their decision-making processes and
institutions.”277
270
ACH Bill, clause 133(1).
ACH Bill, clause 133(2).
272
ACH Bill, clause 133(3).
273
Packham 2014; Butterly and Pepper 2017; for published decisions, see Histollo Pty Ltd v. Director-General of
National Parks and Wildlife Service, (1998) 45 NSWLR 661; Garrett v. Williams, (2007) 151 LGERA 92; Plath v. O’Neill,
(2007) 174 A Crim R 336; Chief Executive of the Office of Environment and Heritage v. Ausgrid, (2010) 199 LGERA 1;
Chief Executive of the Office of Environment and Heritage v. Crown in the Right of New South Wales, [2016] NSWLEC
147; Chief Executive, Office of Environment and Heritage v. Clarence Valley Council, (2018) 236 LGERA 291.
274
Packham 2014.
275
See OEH 2018a.
276
ACH Bill, clause 3.
277
UNDRIP, Arts. 18, 19, 31.
271
International Journal of Cultural Property
27
However, a closer examination highlights some serious shortcomings. The ACH Bill
continues to consider tangible and intangible ACH separately and ignores ACH that may
evolve and adapt in the future. The Bill does not vest ownership of all ACH in Aboriginal
people. It only vests ownership of objects and ancestral remains in a central Authority. The
ACH Bill places local groups at the mercy of the central Authority when it comes to the
repatriation of ACH objects and remains, which ignores the preference for local ACH
decision making, as expressed by Aboriginal people in consultations on the Bill, and
therefore fails to advance the UNDRIP principles that require frameworks that reflect
Aboriginal decision-making institutions. The ACH Bill also fails to advance its own objective
of recognizing Aboriginal ownership of all ACH.
On the surface, the ACH Bill appears to advance the UNDRIP principles related to
Aboriginal control over Aboriginal information by vesting responsibility for the new
information management system in the centralized Authority. However, this does not
reflect the preference for local ACH decision-making. The new system also requires Aboriginal people to disclose secret information on sacred sites to secure protection and to make
secret knowledge publicly available in order to secure exclusive rights to exploit it. The Bill
allows different groups to register the same secret knowledge, without the consent of all
groups holding the same knowledge. This destroys any contrary aspirations of nonconsenting groups to keep the knowledge secret.
The new governance structures and assessment pathways are particularly problematic.
Although the ACH Bill purports to exclude ministerial control over the new ACH Authority,
it allows the minister to appoint members, remove them at will, and make the final decision
on key ACH matters. The Bill also positions local cultural authorities as advisors to the
central Authority and transfers responsibility for the new information management system
to the ACH Authority. This is in contrast to the expressed preference of Aboriginal people for
local cultural authorities to make ACH decisions. The Bill excludes major projects, which is
one of the key threats to ACH, from the assessment pathway. It also allows development
proponents to seek merits reviews of ACH decisions while failing to accord Aboriginal people
the same right. These elements clearly resemble the current system that prioritizes decision
making by government and the interests of developers over Aboriginal people. Although the
ACH Bill proposes some new offences and increases the maximum penalty for some offences,
it reduces the maximum penalty for others. This valuation of ACH harm at less than that
under comparable environment and planning offences impedes the ACH Bill’s aim of
building widespread respect for ACH.
This article has provided some pragmatic suggestions to help the NSW government to
better achieve the ACH Bill’s objectives and to advance the UNDRIP principles. Most
importantly, the NSW government should submit a revised draft bill to the Aboriginal
people of NSW for consultation and comment prior to presenting the final ACH Bill to
Parliament. This will help ensure a legal framework that has the broad support of the people
it affects the most—the NSW Aboriginal community.
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