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Indigenous Law Bulletin

Indigenous Law Bulletin
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Finlayson, Julie --- "Stirrings: Update on Proposed Changes to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)" [1998] IndigLawB 66; (1998) 4(14) Indigenous Law Bulletin 21

Update on Proposed Changes to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

by Julie Finlayson

The future for indigenous heritage protection looks increasingly gloomy. The Commonwealth is moving to repatriate responsibility for indigenous cultural heritage protection and conservation, environmental laws and native title administration to the States and Territories. The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 ('the Heritage Bill') continues this process. The Heritage Bill weakens the Commonwealth Government's watching brief for indigenous people, as well as undermining the principle that the protection of indigenous heritage is, in itself, integral to the national interest.

The Heritage Bill was passed by the House of Representatives in June. It is currently before the Senate, which will sit for two weeks from 31 August. With the large number of bills presently before the Senate it is uncertain whether the Heritage Bill will be considered and passed in this sitting. In October 1995 Justice Elizabeth Evatt was appointed by the Keating Labor Government to review the Commonwealth's Aboriginal and Torres Strait Islander Heritage Protection Act 1984. She presented her report to the Federal Coalition Government in August of the following year. Evatt recommended a number of procedural and administrative changes to make the Act workable. However, the present Heritage Bill includes only a limited number of Evart's coordinated recommendations.

The Heritage Bill seeks to hand over responsibility for indigenous heritage protection to the States and Territories. The Heritage Bill requires the Commonwealth Minister to accredit State and Territory legislation where the Minister is satisfied that this legislation complies with certain minimum standards. The requirement for accreditation is so minimal that the majority of existing State and Territory legislation would achieve accreditation, whatever their deficiencies.

Accreditation means that the Commonwealth will not accept applications for protection of indigenous heritage unless the Minister determines that it is in the 'national interest'. This concept of the 'national interest' alters the Commonwealth's role in the protection of indigenous heritage by diverting attention from indigenous heritage values to national considerations. The Heritage Bill has been the subject of two inquiries by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (Reports Eleven and Twelve). These reports are publicly available for scrutiny of the terms of reference for the inquiries, submissions received and evidence taken, and the final Committee recommendations. In both inquiries, minority reports were submitted by Labor and Democrat Committee members.

Surprisingly, Committee recommendations which supported key aspects of Evart's Review were not adopted; the Twelfth Report was presented to Parliament on the same day that the Heritage Bill was resubmitted to, and passed by the House of Representatives.

Dr Julie Finlayson is a Research Fellow, in the Centre for Aboriginal and Economic Policy Research, Australian National University, Canberra, ACT

[Note: the November issue of the ILB will be a thematic issue focussing on heritage]

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