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Hi all, apologies for the length and lateness of this information, but it
is an important issue which should be of interest to members of this list.
Items in this udate:
1. A word on heritage protection and native title.
2. Letter from ATSIC about the bill
3. ATSIC summary: What's Wrong with the Bill?
4. Summary of the ATSIHPA review - Justice Elizabeth Evatt.
5. Hearings dates
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1. A word on heritage protection and native title.
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During the recent passage of the Native Title Amendment Bill the government
identified effective heritage protection as an essential element of its
approach to native title. In doing so the government acknowledged that
sacred sites and other places of significance are an important component of
native title rights and interests, however, it also argued that heritage
protection measures should be excluded from the Native Title Act on the
basis that this function is already provided by existing heritage
protection legislation of the Commonwealth, States and Territories. The
Government's view was supported in the Senate with the help of Senator
Harradine.
A problem for native title rights with this approach is that State and
Territory heritage protection legislation is a patchwork, much of it
grossly inadequate. This is a problem which the Government is well aware of
following a review last year of the Commonwealth's own act, the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (ATSIHPA), by
Justice Elizabeth Evatt. Justice Evatt recommended changes that, amongst
other things, would ensure the Act provides a national benchmark as well as
an alternative avenue of appeal in cases where State and Territory
legislation fails to satisfy the concerns of Aboriginal cutodians.
Now, in its response to the ATSIHPA review, the Government has introduced
an amendment bill which ignores much of Evatt's recommendations and
effectively hands over its responsibility for heritage protection to the
States and Territories in all but cases of national interest. The bill
represents a leap backwards in indigenous heritage protection and further
undermines the native title rights of indigenous Australians.
The bill has been referred to the Parliamentary Joint Committee on Native
Title and the Aboriginal and Torres Strait Islander Land Fund. Please
consider putting in a submission to the Committee.
Submissions should be sent to:
Peter Grundy
Committee Secretary
Parliamentary Joint Committee on
Native Title and the Aboriginal and Torres Strait Islander Land Fund
Parliament House
Canberra ACT 2600
Tel: (02) 6277 3598
Fax: (02) 6277 5706
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2. Letter from ATSIC about the bill.
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>To Whom it May Concern
>
>This message is intended to provide information on the Commonwealth
>Government's proposals to amend the Aboriginal and Torres Strait Islander
>Heritage Protection Act 1984, and in particular, to explain indigenous
>concerns with the Bill.
>
>On 2 April 1998 the Commonwealth Government introduced its Aboriginal and
>Torres Strait Islander Heritage Protection Bill 1998 into the House of
>Representatives. The Bill was immediately referred to the Parliamentary
>Joint Committee on Native Title and the Aboriginal and Torres Strait
>Islander Land Fund for report by 22 May.
>
>In a press release on 2 April, the Chairman of the Commission, Mr Gatjil
>Djerkura, and the Heritage portfolio Commissioner, Mr Preston Thomas,
>expressed disappointment with the Bill and indicated that it represents the
>second instalment of an attack on existing Indigenous rights.
>
>They said that it effectively allows the Commonwealth Minister for
>Aboriginal and Torres Strait Islander Affairs to hand over heritage
>protection to the states and territories, despite the clear constitutional
>responsibility that the Australian people gave to the Commonwealth
>Government in 1967.
>
>The Minister is permitted to do this without consulting Indigenous people or
>seeking any real improvement in laws which have often proved to be poorly
>framed and inadequately enforced. This puts us at risk of returning to an
>earlier era when the states and territories largely ignored the heritage
>interests of our people.
>
>Copies of the Bill, the Explanatory Memorandum and the Second Reading Speech
>can be accessed at http://www.aph.gov.au/.
I have attached ATSIC's
>preliminary assessment of the Bill in light of the Government's original
>proposals and the consultations undertaken by ATSIC in 1997. You may also
>wish to visit our home page at: http://www.atsic.gov.au for the electronic
>version early next week.
>
>It is vital that the above Committee be made aware of the issues surrounding
>this Bill. I urge you to carefully read our preliminary assessment with a
>view to making a submission to the Committee.
>
>If you have any problems accessing this document, please contact Mr. Nathan
>Hancock on (02) 6289 8874.
>
>J. Eldrdige
>General Manager
>Social & Cultural Division
>ATSIC
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3. ATSIC summary: What's Wrong with the Bill?
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>The Aboriginal and Torres Strait Islander
>Heritage Protection Bill 1998
>
>WHAT IS WRONG WITH IT?
>The key concerns for Indigenous people are:
>1. Commonwealth withdrawal from Indigenous Heritage Protection
>* The Bill limits the Commonwealth role in accredited State regimes to
>matters involving national interest considerations:
>* this means the vast majority, if not all, applications would not be
>eligible for protection, even as a last resort;
>* Indigenous heritage would be hostage to State political imperatives,
>with no avenue of appeal;
>* this is contrary to the recommendation of both Justice Evatt and the
>Parliamentary Joint Committee on Native Title and the Aboriginal and Torres
>Strait Islander Land Fund that the Commonwealth legislation continue to be
>available as a statute of last resort;
>* this is an erosion of the existing framework of protection available
>under the combination of the current Commonwealth Act and State and Territory
>regimes.
>2. Basis and process of accreditation of State/Territory Schemes
>* The Bill prescribes an inadequate set of minimum standards for
>accreditation of State/Territory regimes, expressed in imprecise general terms
>and omitting important criteria. It does not require that the Minister consult
>with Indigenous people before a decision to accredit, and does not require
>that State administration of heritage protection legislation be monitored
>after accreditation.
>3. Lack of Indigenous control in decision making on significance and threat
>* The Bill does not provide for Indigenous involvement in decision making
>on significance and threat. The proposed Director of Indigenous Heritage must
>regard Indigenous people as the primary source of information on these
>matters, but there is no requirement that the Director be Indigenous and no
>structure for involving Indigenous people in the decision making process. This
>Office of Indigenous Heritage is a far cry from Justice Evatt's Aboriginal
>Cultural Heritage Committees.
>4. Definition of areas and objects to be protected
>* The Bill adopts the definition used in the current Act, viz areas and
>objects which are "of particular significance in accordance with Indigenous
>tradition", despite recommendation by Justice Evatt to adopt a new approach
>based on an assessment of the degree and intensity of the belief of Aboriginal
>people concerning the area or object involved. The focus on tradition has
>been maintained despite its tendency to exclude areas and objects that are
>significant for historical considerations. Experience under the current Act
>indicates that it is necessary to further define tradition in the Bill to
>ensure that it is seen as an evolving thing that changes over time.
>5. Inadequate Minimum Standards for accreditation
>* The minimum standards prescribed in the Bill are indeed minimum - they
>represent a lowest common denominator approach which will not set standards or
>benchmarks for minimum acceptable practice. As a result, they will not
>substantially improve most State or Territory laws and will result in most
>State/ Territory regimes being accredited in relatively short order, despite
>clear deficiencies. The Bill represents a wasted opportunity to improve the
>standard of Indigenous heritage protection laws applying in Australia. There
>are key minimum standards missing from the Bill (eg automatic blanket
>protection - recommended by the Parliamentary Joint Committee, Indigenous
>control over assessments, access rights, review rights, protection of
>significant historical areas, and resources to provide real access to State
>and Territory remedies). Significantly, the minimum standards relate to only
>relate to State and Territory legislative provisions - there is no
>consideration of whether or how those provisions are administered by the State
>or Territory. This, combined with the general nature of the minimum standards,
>gives no reason for confidence that an accredited regime will actually provide
>effective protection for Indigenous heritage.
(see http://www.atsic.gov.au for further information
on the bill).
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4. Summary of the ATSIHPA review - Justice Elizabeth Evatt.
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>PROTECTING ABORIGINAL HERITAGE: A NATIONAL RESPONSIBILITY
>The laws protecting Aboriginal heritage are now under review. It is important
>to ensure that the need for reform is not used as an excuse for the
>Commonwealth to withdraw from the field of heritage protection. We use the
>heritage of the indigenous people of Australia to promote our image in the
>world, and should accept that it is and must remain a national responsibility
>to protect that heritage. Our national and international obligations make this
>a necessity. This paper presents a brief summary of key issues which may arise
>in the forthcoming proposals to reform the Aboriginal Heritage Protection Act.
>
>THE ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1984 (A
>COMMONWEALTH ACT
>)The Heritage Protection Act can be used to protect areas and objects which
>are significant to Aboriginal people according to their tradition. It can
>apply to any such area or object in Australia, whoever owns it and whether it
>is on public or private land. [Note: It does not apply to intellectual
>property, which is the subject of a separate study by ATSIC]
>
>THE ACT DOES NOT CREATE A RIGHT TO PROTECTION
>The Act works by giving the Commonwealth Minister for Aboriginal Affairs power
>to protect particular areas and objects significant to Aboriginal people when
>they are threatened by injury or desecration. The Minister can make a
>declaration to protect an area or object, but does not have to do so.
>
>THE COMMONWEALTH ACT IS A BACK-UP TO STATE AND TERRITORY LAWS
>The Commonwealth Minister will consider action only if he/she considers that
>State or Territory laws do not provide adequate protection for the area or
>object. However, State and Territory laws are diverse, and most are not
>considered effective by Aboriginal people. The most effective model is that of
>the Northern Territory where heritage protection is required to be in
>accordance with the Northern Territory Land Rights legislation. That
>legislation is also under review. If the State or Territory laws were
>effective, there would be less need to use the Commonwealth Act. Where State
>laws are ineffective, as in Queensland, for example, Aboriginal people make
>greater use of the Commonwealth Act.
>
> WHAT SORT OF THREATS ARE COVERED BY THE ACT?
>The Act applies to threats of all kinds, including construction work such as
>the building of roads, bridges or dams, the entry of persons into places
>contrary to customary laws or traditions and the sale or exhibition of sacred
>objects. When an area or object is threatened in this way, Aboriginal people
>can apply to the Minister to protect the site or object.
>
>THE BENEFITS OF THE ACT
>At its best, the Commonwealth Heritage Protection Act can be used by the
>Minister to set up a genuine process of consultation and conciliation. The
>Minister can make temporary protection orders to encourage further dialogue
>and negotiation, which may result in improved protection for the area or
>object.
>
>PROBLEMS WITH THE ACT
>At its worst, the Act has led to delays, confusion, litigation and expense for
>Aboriginal people, developers and State and Territory governments. This is
>partly because the Act lacks a proper procedural framework. The Minister can
>allow the problem to remain with the State and delay any protective action.
>until it is too late. Most cases where the Minister has made a declaration to
>protect an area have resulted in lengthy litigation in the Federal Court. The
>worst example is the Hindmarsh Island Bridge case, but there are other cases
>of this kind. Another deficiency of the Act is that it does not give
>Aboriginal people any role or responsibility in assessing the significance of
>area or object.
>
> REPORT ON THE ACT, 1996
>A Report on the operation of the Heritage Protection Act (the Evatt Report)
>was presented to the Minister in 1996 after extensive consultations. It made
>recommendations to make the Act more effective and to overcome some of the
>problems mentioned above. Key points in the recommendations are these:
>*Encourage States and Territories to implement minimum standards of
>protection, while maintaining the Commonwealth Heritage Protection Act as a
>remedy of last resort in all cases.
>*Commonwealth, State and Territory laws should provide for effective
>consultation, mediation and dispute resolution at the earliest possible stage
>of any planning and development which may threaten heritage.
>*Ensure that Aboriginal people have responsibility for assessing the
>significance of an area or object, and encourage State and Territory processes
>which provide for independent Aboriginal heritage bodies with responsibility
>for such assessments
>*Accredit State and Territory procedures which meet minimum standards for
>assessing significance of areas.
>*Protect confidential information about areas and objects from improper
>disclosure.
>*The significance of an area or object should be determined by Aboriginal
>people. The question whether the area or object should be protected should be
>left to the Minister.
>*Establish clear procedures under the Act to ensure that the decision making
>process is not subject to delays and does not lead to wasteful litigation.
>*Establish an independent Aboriginal Heritage Protection Agency
>
>FOLLOW UP TO THE EVATT REPORT
>There is as yet no detailed response to the Evatt Report. In December 1996 the
>Minister for Aboriginal Affairs announced that there would be consultation on
>certain principles proposed by the Evatt Report. ATSIC has been undertaking
>these consultations. In March 1997, the Senate referred the Report to the
>Parliamentary Joint Select Committee on Native Title and The ATSI Land Fund
>(Chair is Warren Entsch MP). A Report from this Committee is due in April
>1998. It is expected that a Bill to implement changes to the Heritage
>Protection Act will be introduced in the Commonwealth Parliament in April
>1998. It is likely to be referred to the Entsch Committee
>
>.KEY ISSUES TO WATCH FOR
>Will the Government proposals:
>*acknowledge that the protection of Aboriginal heritage is a major national
>responsibility?provide for unrestricted access to the Commonwealth under the
>Heritage Protection Act?
>*ensure that State and Territory laws meet minimum standards?
>*give Aboriginal people the major responsibility to determine the significance
>of an area or object?
>*ensure that Aboriginal people are entitled to be consulted when heritage is
>threatened by development?
>*ensure that protection of Aboriginal heritage is the first priority?
>*ensure that heritage issues are built into the planning and development
>process?
>*ensure the participation of Aboriginal people in that process?
>*protect confidential information about significant areas and sites?
>*provide a clear decision making process, which will avoid court proceedings?
>
>WHAT CAN BE DONE?
>*Educate the community about Aboriginal heritage, its significance to all
>Australians and its special significance for Aboriginal people.
>*Make submissions to the Entsch Committee and other relevant bodies.
>*Press for laws which: empower Aboriginal people in the protection of their
>heritage, protect culturally sensitive information,maintain the Commonwealth
>role in heritage protection andencourage States and Territories to adopt and
>enforce minimum standards of protection
>*Support the maintenance of the right to negotiate under the Native Title Act,
>which provides an important protection for Aboriginal heritage. Loss of that
>right would leave Aboriginal people with inadequate protection of heritage
>under existing State and Territory laws.
>*Oppose any changes to the Northern Territory Land Rights Act which undermine
>the regime for heritage protection now established in that State.
>*Press for the inclusion of heritage protection in regional land use
>agreements.
>*Consider what action could be taken to ensure that Australia meets its
>obligations under the ICCPR and other human rights instruments to ensure to
>indigenous people the right to enjoy their own culture and religion without
>discrimination.
>
>SOME CURRENT CONCERNS
>*A challenge to the Hindmarsh Island Bridge Act (which exempts the Bridge from
>the 1984 Act) is now before the High Court. An application under the Heritage
>Protection Act to protect fish traps in the Hinchinbrook channel is pending.
>The area is listed as World Heritage, but the protection of the traps depends
>on State law.An application under the Heritage Protection Act in respect of
>Lake Victoria is pending. The Minister has requested that a report be prepared
>on the issues.
>
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ATSI Her Pro Bill 1998 public hearings
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8 May
Melb
Room K, Parliament House Melb
9-5pm
11th May
Canberra
Committe Room 1s6
8am
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ANTaR ACT Contact Details:
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GPO Box 1323
Canberra, ACT 2601
Phone: Community Aid Abroad (02) 6257 4472 (bh), or
Cate Buchanan, ph: 0414 644164
e-mail: antaract@interline.com.au
websites:
http://www.antar.org.au/act (ACT)
http://www.antar.org.au (national)
National Clearinghouse (Sydney) 02-95556138
ANTaR - Australians for Native Title and Reconciliation
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This page was last modified on Tuesday, 12-Sep-2000 21:10:41 EST
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