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ANTaR (ACT) update # 56 (February, 1999)Dear all, The Senate Legal and Constitutional Affairs Committee is currently holding an inquiry into the Commonwealth's Aboriginal and Torres Strait Islander Heritage Protection Bill. The Committee is due to report by the 8th March and is accepting submissions till the 12th February (submissions may be accepted after this date). At present a single hearing date is set for Canberra on the 19th February (more hearing dates may be set if enough submissions request the opportunity to give evidence). Needless to say, the current Bill is completely indequate (see briefing material below), and pressure is needed to avert a similar disaster to the Native Title Act amendments. On the present timetable the Bill could pass through the Parliament before July when the incoming senators will give the Democrats the balance of power in the Senate. This means that the fate of the Bill may rest on Senators Harradine and Colston. Please consider putting in a submission to the Committee (details given below) even if it is just a letter with dot points on the major issues. You might also consider writing to the ALP, Senator Haradine and the Democrats (details below) expressing your concerns. This issue is vital to indigenous Australians. Australians for Native Title and Reconciliation Briefing: Aboriginal and Torres Strait Islander Heritage Protection Bill. Background Since the Howard Government has been returned, they are continuing their attack on Australia's indigenous people by reintroducing the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998. The effect of this Bill would be that the Minister cannot make an order to protect indigenous heritage where an accredited State or Territory regime exists, unless the Minister is satisfied that the making of the protection order is in the national interest. The Bill is designed to give responsibility for the protection of indigenous heritage to State and Territory Governments rather than the Commonwealth Government. The importance of heritage protection for indigenous people cannot be understated, and it is certainly central to any hope for reconciliation. No Government has yet satisfied the need for federal legislation which ensures security for Aboriginal sacred sites and heritage. The previous ALP Government commissioned a review of the current Act by the Hon Elizabeth Evatt (A Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 the Evatt Review) but lost Government before the Review was finished. The Review was very thorough, examining each State and Territory regime, and it is regarded by most parties as the benchmark for future legislation. However in introducing its legislation, the Howard Government ignored not only essential recommendations of the Evatt Review but also central recommendations of the Parliamentary Native Title Committees Report. Even the Native Title Committee, which is chaired by Mr Warren Entsch MP (Qld Liberal), said that the Government's Bill needs amendments. Commonwealth Responsibility The Commonwealth has constitutional powers and responsibilities for indigenous heritage protection under a number of constitutional provisions, as well as moral responsibilities, (particularly in the light of the 1967 Referendum, which gave the Commonwealth a responsibility to ensure that Aboriginal heritage is nurtured and protected in a comprehensive and consistent way). There are also obligations which Australia has taken on in an international context, including:
which imposes a duty on Australia to ensure that its cultural and natural heritage of outstanding universal value is identified, protected, conserved, presented and transmitted to future generations. The Government's current Bill removes Commonwealth responsibility for indigenous heritage if there is a State/Territory heritage regime recognised by the Commonwealth, unless the Minister decides there its in the national interest that the Commonwealth intervene. As ATSIC says, this provision fundamentally changes the nature of Commonwealth involvement in indigenous heritage protection and the relationship between Commonwealth, State and Territory regimes. More Problems with the Bill There are other problems with the Bill, such as its failure to recognise that tradition should be a living concept, rather than something frozen in time, and the failure of the Bill to specify that Ministerial decisions which are to be placed before the Parliament should be in writing (this means that Parliament will find it harder to decide whether the Minister's decision should be allowed to stand or not). The Government should be made to amend the legislation (amendments which even its own members have already supported). During the Native Title debate the Government rejected amendments to its Native Title Bill which sought to protect indigenous heritage on the grounds that they would be dealt with in heritage protection legislation. This would not turn out to be the case under this heritage protection Bill. Instead, as ATSIC has pointed out, the removal of the right to negotiate from the Native Title Act would be reinforced by an effective Commonwealth withdrawal from Aboriginal and Torres Strait Islander heritage protection. The lengthy and divisive debate that took place on the native title amendments should not happen again with indigenous heritage. The amendments to the Native Title Act have taken away from the already very limited ability of Aboriginal people to protect their cultural heritage. By weakening heritage protection processes even further, this Bill leaves the protection of Aboriginal and Torres Strait Islander cultural heritage in extreme jeopardy. What can be done Please write to your local member expressing your disgust at what the Government is trying to do, or make a submission to the Senate Committee on Legal and Constitutional Affairs, which is conducting an enquiry into the Bill (they are due to report by 8th March 1999). Submissions can be posted or faxed by the 12th February. Secretary And ask that the Bill be amended so that it reflects the recommendations in the Evatt Review. You could also write to the ALP, Senator Harradine or the Democrats asking the same thing: The Hon Mr Kim Beazley Senator Kerry O'Brien Senator John Woodley Background Information on the Bill State and Territory Regimes The Government is proposing to hand over responsibility to States and Territories without ensuring that basic standards are met. The Bill does set out vague criteria which would be used by the Minister to decide when a regime is acceptable, however these criteria are inadequate. * One of the most important features that hasn't been sufficiently addressed is the need for a blanket protection scheme. This would follow the Northern Territory's legislative approach, which, despite some problems, is clearly the best practice model. This blanket protection approach means that there is a presumption sacred sites are protected, rather than forcing indigenous communities to go through registration processes before a site is protected. It also means that protection should be effective. * The Evatt Review recommended three levels of indigenous involvement in carrying out the requirements of indigenous heritage protection. The Government has only recognised one level of involvement, which is to recognise that decisions regarding the significance of a site or object for indigenous people should be made in consultation with indigenous persons. This is a totally obvious involvement and doesn't address the question of self-management of indigenous heritage issues. The need for the establishment of an Aboriginal Cultural Heritage Advisory Council has been ignored and instead we have an individual who will be the Director of Indigenous Heritage, and appointed by the Minister, rather than the Governor-General. Similar appointments in comparable legislation are usually made through the Governor-General, giving the appointments a degree of independence. The Aboriginal and Torres Strait Islander Social Justice Commissioner and other human rights commissioners are appointed by the Governor-General, who must be satisfied that they are appropriately qualified. The Governor-General also makes appointments to comparable positions under the: Australian War Memorial Act 1980 (sections 10 & 20) The Howard Government has once again ignored the suggestion by the Evatt Review that States and Territories have Aboriginal cultural heritage bodies with responsibility for site evaluation and for the administration of the legislation. Ms Evatt recommended that these bodies should:
None of these provisions are reflected in the Governments proposed legislation. Without strong and effective State/Territory regimes, and strong and effective indigenous involvement indigenous heritage will remain under threat. The indigenous involvement must not just be in decisions as to what areas or objects have indigenous cultural significance but also in the administration of the legislation itself. The protection of Aboriginal heritage must be recognised as an important national interest in itself, and the protection procedure under the Bill should be available as a mechanism of last resort in all cases. It is otherwise too easy for the Minister to decide that the concerns of Aboriginal people in a particular region or locality are not the same as the national interest. Any legislation that doesn't recognise that heritage is about the protection of local heritage is inadequate. Further information on the Bill is available from http://www.antar.org.au/heritage/ or contact ANTaR (details below). The Senate Committee has also produced a comparison of the recommendations of other Committee inquiries into the Bill (The 11th and 12th Reports) and the current Bill. Copy can be requested by phoning 02-62773560.
ANTaR (ACT) Contact Details GPO Box 1323 ANTaR - Australians for Native Title and Reconciliation *Please forward this message on to other interested people* *****GETTING ON/OFF THIS LIST: |