Macquarie Journal of International and Comparative Environmental Law
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TAMZYN CHAPMAN[*]
The protection afforded to Indigenous cultural heritage at the international, national and state level is piecemeal, overly bureaucratised, unnecessarily vague, lacking in effective sanctions, and subject to the current Australian Federal government’s refusal to effectively acknowledge the unique place that Indigenous people, their traditional knowledge, and cultural heritage hold within Australian society. Australian State legislation in New South Wales, and Federal legislation is examined, and this paper ultimately suggests Indigenous cultural heritage requires sui generis legislative protection.
The concern to protect cultural heritage is relatively recent, considering how ancient much of the world’s cultural heritage is, particularly Indigenous cultural heritage. This paper considers and critically evaluates the protection afforded to Indigenous cultural heritage, and argues it is unnecessarily weak at every government level, to the detriment of future generations deprived of outstanding universal heritage. What we value as heritage now, and what future generations value as heritage may be entirely dissimilar[1] – however that sentiment will never apply to Indigenous cultural heritage, which has existed for millennia, and is largely cultural heritage because it has not changed. Yet the protection given to Indigenous cultural heritage under heritage law, environmental law and criminal law is inadequate; ineffective; overly bureaucratic; and subject to incongruent legislative frameworks which suffer from a lack of co-ordination. Furthermore, sanctions offered under New South Wales law are infrequently and insufficiently implemented. Indigenous cultural heritage protection requires political commitment from the various levels of government to work together to streamline heritage protection. However to date, the loss of cultural heritage and cultural knowledge through State, Federal and International inaction on its protection is a disgrace. The protection of Indigenous cultural heritage requires an acknowledgement that Indigenous cultural heritage is a part of the environment,[2] and an effective means of sanction for its destruction (which is presently lacking in Australia).
In 1953 the International Labour Office published a study on the living conditions of Aboriginal populations and found ‘[a]s a rule the living standard of the Aboriginal populations in independent countries is extremely low, and in the great majority of cases is considerably lower than that of the most needy layers of the non-Indigenous population.’[3] Concomitantly, the International Labour Organisation became on of the first international organisations to develop standards for the protection of Indigenous workers. Early instruments include the:
Successive Australian governments have unwittingly perpetrated Indigenous poverty through retention of a protection framework that is hopelessly inadequate and constrains economic exploitation of traditional knowledge. Indigenous cultural heritage protection has been marginalised in Australia. Sites of incredible significance to the global population (to use the UN definition, of ‘outstanding universal value’) are being lost due to the failure and neglect of Australian legislation to offer adequate protection.
In 1954, the international community expressed concern about the vulnerability of cultural heritage, and adopted a legislative framework for its protection. The 1954 Convention on the Protection of Cultural Heritage in the Event of Armed Conflict[5] considered that:
damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world; and…that the preservation of the cultural heritage is of great importance for all peoples.[6]
Separate sui generis protection for Indigenous culture is noticeably absent in Australian law, but not in international law. At its fifteenth conference in Paris 15 October to 20 November 1968, the United Nations Educational, Scientific and Cultural Organisation (‘UNESCO’) Recommendation Concerning the Protection of Cultural Property Endangered by Public of Private Works[7] expanded on a concept of cultural heritage as being a part of the heritage of humanity, noting in its Preamble:
Contemporary civilization and its future evolution rest upon, among other elements, the cultural traditions of the peoples of the world, their creative force and their social and economic development,
Considering that cultural property is the product and witness of the different traditions and of the spiritual achievements of the past and thus is an essential element in the personality of the peoples of the world,
Considering that it is indispensable, to preserve it as much as possible.[8]
The Recommendation defined cultural property as including: ‘not only the established and scheduled architectural, archaeological and historic sites and structure, but also the unscheduled or unclassified vestiges of the past as well as artistically or historically important recent sites and structures’.[9] Indigenous cultural heritage is not mentioned.
In 1970, concerned about the growing market demand for cultural heritage and the illicit trade that resulted from this demand, UNESCO showed the foresight to prevent the unnecessary destruction and loss of cultural heritage by adopting the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property[10] (‘UNESCO Convention’). However in Attorney-General (New Zealand) v Ortiz,[11] a case concerning the illegal export of Maori ceremonial doors from New Zealand, the English High Court upheld the rule that ‘English courts have no jurisdiction to entertain an action… for the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state’.[12] The 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage[13] provided a definition of cultural heritage: as monuments, groups of buildings, or sites.[14] It is unfortunate that the Australian Government does not appear to refer to the Convention it ratified on 22 August 1974 when considering the outstanding universal value of Indigenous cultural heritage. A brief examination of the international, national and state legislative frameworks reveals that the intention of the Australian government appears to be not only to marginalise the protection of Indigenous cultural heritage, but even to ignore it.
To ratify the UNESCO Convention Australia enacted the Protection of Moveable Cultural Heritage Act 1986 (Cth), which provided that foreign cultural heritage exported contrary to the state of origin’s export laws will be considered as an unlawful import into Australia. However;
[d]ifficulties may also arise where states apply laws that declare all cultural heritage found within the state to be state property, irrespective of whether the heritage is in a museum, in a private collection, or still undiscovered underground or underwater. If the heritage is then removed from the source state to a market state, the source state would simply need to declare that the heritage originated in its territory to assert ownership.[15]
Possession being nine tenths of the law, once ownership is ascribed to cultural heritage it can be difficult to disprove. Three recent examples highlight the struggle for Australian Aboriginal people to have their ancestral remains repatriated. On 22 October 2007 a ceremony was held in Sweden marking the return of the remains of at least ten Aboriginals taken from Australia for scientific research a century ago. The remains are the second to be repatriated by Sweden after fifteen skeletons were sent back in 2004. The skeletons had been in museums since being taken from graves in the Kimberley region of Western Australia in 1910 and 1911.[16] On 15 May 2007 the remains of seventeen Tasmanian Aboriginals were repatriated after a 20-year battle for their return,[17] and remains are still being held at Oxford and Cambridge Universities, the Scottish National Museum and the National Field Museum in Chicago.[18] On 29 September 2005, NSW Environment Minister Mr. Bob Debus declared seven new “Aboriginal Places” within NSW's parks and reserves, recognising the resting places of up to 80 sets of Aboriginal ancestral remains repatriated from Australian and overseas museums.[19] The extent of ancestral remains remaining in the custody of institutions or people other than the traditional owner is unknown.
The 1992 UN Conference on Environment and Development produced the Rio Declaration on Environment and Development[20] and Plan of Action, the so-called Agenda 21, reaffirming the principles contained in the 1972 Stockholm Declaration.[21] The Rio Declaration avowed States Parties have ‘the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies’,[22] at the same time working co-operatively ‘in a spirit of global partnership’[23] to achieve a proper balance between development and protection of the environment,[24] eradication of poverty[25] and protecting the ‘integrity of the Earth’s ecosystem.’[26] Principle 22 turned attention to the role of Indigenous peoples and their communities, leading some to assert: ‘Indigenous people and their communities and other local communities have a vital role in environment management and development because of their knowledge and traditional practices.’[27] The protection of global heritage, particularly in the natural environment where Indigenous cultural heritage is almost exclusively located, needs to have regard to the sovereignty of State parties, but no longer to the extent that that sovereignty can be used as an excuse for the destruction of global cultural heritage.
The 1992 UN Convention on Biological Diversity (‘CBD’)[28] establishes traditional Indigenous knowledge as essential to the conservation of biodiversity and the ‘sustainable use of its components’.[29] The CBD requires States Parties to ‘respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles’.[30] Article 8(j) has been subjected to considerable criticism by Indigenous peoples, who argue it merely pays lip service to the ability of many Indigenous communities to meaningfully participate in programs designed to utilise their traditional knowledge and cultural heritage:
Capacity building, the activity or issue most often brought up by Indigenous Peoples, remains virtually unaddressed. As stated in the case studies, it seems that the only initiatives in effective implementation of the Convention come from the Indigenous organizations themselves.[31]
The requirement that implementation of Article 8(j) should be subject to national legislation may also be problematic for Indigenous peoples, especially where existing national laws might contradict or place limitations on any measures introduced under 8(j). The CBD encourages but does not oblige countries to respect and preserve Indigenous knowledge.[32]
In 1971 the UN Economic and Social Council (ECOSOC) authorised the Sub-Commission on Prevention of Discrimination and Protection of Minorities to make a comprehensive study of the discrimination against Indigenous populations and to suggest measures for eliminating such discrimination.[33] The Commission established a Working Group on Indigenous Populations (WGIP), which held its first session in 1982 and in 1985 declared its aim to be to produce ‘a draft declaration on Indigenous rights.’[34]At its eleventh session in 1993, the WGIP agreed upon a final text of the Draft Declaration on the Rights of Indigenous Peoples (“Draft Declaration”). On 17 July 2003, the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage[35] asserted:
States should adopt the appropriate legislative, administrative, educational and technical measures, within the framework of their economic resources, to protect cultural heritage and should revise them periodically with a view to adapting them to the evolution of national and international cultural heritage protection standards.[36].
This Declaration works tangentially with the 17 October 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.[37] The Convention acknowledged in its Preamble the ‘importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development’, reiterating concern that
processes of globalization and social transformation, alongside the conditions they create for renewed dialogue among communities, also give rise … to grave threats of deterioration, disappearance and destruction of the intangible cultural heritage, in particular owing to a lack of resources for safeguarding such heritage.[38]
Article 11 of the Convention places a positive obligation on a State Party to ‘identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant non-governmental organizations,’presciently noting that the destruction of intangible heritage is particularly problematic when considering Indigenous culture encompasses both tangible and intangible heritage. For example the removal of tangible material that may look innocuous may in fact have an intangible story attached to it, or may have been part of the intangible landscape of a massacre site.
The recently declared United Nations Declaration on the Rights of Indigenous Peoples[39] was produced by the eleventh session of the WGIP and adopted by the General Assembly on 13 September 2007 by a majority of 144 states in favour – with four notable exceptions: Australia, Canada, New Zealand and the United States and 11 abstentions.[40] Two days later the (then) Prime Minister of Australia, Mr. John Howard provided this justification:
The Indigenous people’[s] … future lies in being part of the mainstream of this country. We do not support the notion that you should have customary law taking priority over the general law of the country … It wasn't [a] difficult [decision] at all, because it is wrong to support something that argues the case of separate development inside one country.[41]
Given the refusal to acknowledge the place of Indigenous customary law in the broader legal framework, despite evidence of its usefulness,[42] and the steadfast refusal to apologise to the Stolen Generation – a generation of Indigenous children removed from their families under the racist and misguided policy of assimilation[43] - the former Prime Minister of Australia could not have signed the Declaration in good faith, under the false pretence that Australia has not violated Article 8 of the Declaration:
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
On 13 February 2008, the new Prime Minister of Australia, Mr. Kevin Rudd, apologised to the Stolen Generation on the opening of the 42nd Parliament of Australia,[44] but the refusal of Australia to ratify the Declaration on the Rights of Indigenous People ensures Australian Indigenous cultural heritage protection remains insubstantial.
In 1974, Prime Minister Gough Whitlam received a Report: the ‘Report of the nature and state of the National Estate and the means of conserving and preserving it’ (‘Hope Report’).[45] The Hope Report was the product of thirteen meetings, 650 submissions, and an enquiry that began in 1973 with the aim of addressing the fact that the global trend of environmental consciousness and respect for Indigenous People and culture was passing Australia by.[46] On a recommendation of the Committee of Inquiry, the Australian Heritage Commission was established, and its enabling legislation passed in July 1975.[47] By June 1985
there were 7,974 places listed in the Register of the National Estate and another 281 on the interim list. The largest proportion of these places are historic buildings although some of the places listed for their natural significance, for example, national parks, may cover very large areas and may have historic or Aboriginal sites within them.[48]
The Australian Heritage Commission Act 1975 (Cth) provided for registration of a site on the Register, and imposed constraints on the actions of Commonwealth Ministers.[49] Complementary Indigenous protection legislation, the Aboriginal and Torres Strait Islander (Interim Protection) Act 1984 (Cth), was enacted on 25 June 1984 with a sunset clause provision for its expiry on 23 June 1986.That Act provided the Federal Government with the authority and necessary legal regime to protect areas of significance to Aboriginal people which were under threat of desecration,[50] including land, water and sites.[51] The Act further provided for the Minister or authorised officer[52] to make a declaration to protect a specified Aboriginal area or object where they are satisfied that the area or object is significant and is under threat. Where the Federal Court, on application from the Minister, is satisfied that a person has engaged, or is proposing to engage, in conduct that does or would constitute a contravention, the Court may grant an injunction.[53] Applications under the Act created potential friction between the State and Federal Governments.[54] The Federal Act existed as a ‘last resort’ of protection, and was eventually replaced by the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The lack of co-operation on Indigenous heritage protection was a key reason for its enactment:
[T]his Bill provides the legal basis upon which the Commonwealth can act where the law of a State or Territory does not provide the necessary protection. The lack of protection may arise from either an absence of effective legislation or an unwillingness to enforce the provisions of legislation capable of meeting the goals of this Bill…[T]he Commonwealth wants to encourage States and Territories to use such legislation as they have in the interests of the Aboriginal and Islander people for whose benefit it was passed. Where that legislation is inadequate the Commonwealth will, through this legislation, encourage changes to be made. The Bill before the House is intended to meet those situations where, for whatever reason, local law is inadequate.[55]
The spirit of co-operation did not last long, nor did the effusive sentiment of a Federal Government magnanimously protecting Indigenous cultural heritage where the States had failed to do so. In fact, the Act was a resounding failure: of the 99 areas subject to applications for protection under the Act, only one[56] received protection through a declaration under the Act.[57] In 1995-96 the Act was reviewed by Elizabeth Evatt QC, and her 1996 report made wide-ranging recommendations which would both improve the processes established by the Act and strengthen the capacity for State, Territory and Federal governments to protect Indigenous heritage. Key recommendations were that ‘heritage protection laws should respect Aboriginal customary law restrictions on the disclosure and use of information about Aboriginal heritage’,[58]and ‘a goal of Commonwealth heritage protection law and policy should be the reform of State and Territory laws’.[59] The Evatt Report was widely supported by Indigenous people, [60] yet the government’s response was to introduce the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth) which disregarded recommendations and approved Commonwealth withdrawal from protecting Indigenous heritage by instead allowing State/Territory heritage legislation to be accredited after certain ‘minimum standards’ are met. The Commonwealth’s involvement was thus limited to cases involving the ‘national interest.’ Criticism was scathing:
The … withdrawal of the Commonwealth from the field of Indigenous heritage protection … [will] leave this vitally important area to the whims of often unsympathetic State and Territory regimes … The so-called minimum standards in the Coalition’s Bill for accreditation of the States and Territories are a sham, and will result in little, if any, improvement in the existing State/Territory regimes which are grossly unsatisfactory.[61]
In the background, on 7 November 1997 the Council of Australian Governments were agreeing in principle to the ‘Heads of Agreement on Commonwealth and States Roles and Responsibilities for the Environment’. This was also to be signed by the Australian Local Government Association.[62] Given that most grassroots protection of heritage (Indigenous or non-Indigenous) is done by Local Councils, the agreement provided for the Local Governments to have the primary burden of protection and assessment of local heritage. The Federal Government’s implementation of key aspects of this 1997 Agreement was the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), and ultimately the Australian Heritage Council Act 2003 (Cth) which abolished the Australian Heritage Commission.
The EPBC Act replaced five existing Federal Acts:
When the EPBC Act first came into operation[64] the aim was to protect items of national environmental significance from actions likely to have a ‘significant impact’ on them. In order to extend and simplify protective provisions for heritage places, the EPBC Act was amended in June 2002 effective as at 1 January 2004. The objects of the Act seek to:
However there is little of substance in the EPBC Act for the protection of Indigenous interests, aside from a requirement to have their interests ‘considered’ prior to the Minister issuing any permits,[68] or entering bilateral agreements.[69] The function of the Indigenous Advisory Committee, created ostensibly to ‘to advise the Minister on the operation of the Act, taking into account the significance of indigenous peoples knowledge of the management of land and the conservation and sustainable use of biodiversity’[70] is hopelessly vague, despite ‘the Minister may give the Committee written guidelines about its function.’[71] It is interesting to note that the Commonwealth Government’s EPBC Act website introduction to Indigenous heritage does not open with a laudatory comment on the Government’s action on Indigenous heritage protection, but rather refers immediately to State/Territory legislation before going on to completely ignore the relevant Act:
The EPBC Act offers weak, erratic, problematic protection to Indigenous cultural heritage. Legislation in the State of New South Wales does little better.
Given the requirement for the States/Territories to have primary carriage of Indigenous cultural heritage protection in Australia, NSW can be seen to be offering less than ideal protection. Legislation enacted for the protection of Indigenous cultural heritage is inconsistent and piecemeal; it offers no substantive protection against or penalties for the destruction of Indigenous cultural heritage; and relies on Indigenous people to disclose material information about their cultural heritage whilst being incapable of keeping this material confidential. NSW legislation requires Indigenous disclosure of the location of cultural sites to be put on a Site Register, antithetical to the nature of transmission of traditional cultural knowledge. Failing to put a site on the Register necessarily leaves it vulnerable to destruction through the argument: ‘I searched the Register and there was nothing there’. The Heritage Act 1977 (NSW) allows harm to a heritage item through the use of excavation permits[73] where harm is defined as being damage, despoil, move or alter.[74] Similarly a person who discovers a relic must notify the Heritage Council within a reasonable time of the location of the relic, unless he or she believes on reasonable grounds that the Heritage Council is aware of the location of the relic,[75] but the Act fails to proscribe sanctions: how effective can a prohibition be with no sanction?
Conservation of objects, places or features (including biological diversity) of cultural value, including places, objects and features of significance to Aboriginal people, is a stated object of the National Parks and Wildlife Act 1974 (NSW)[76] (‘NPW Act’), yet enforcement of this object is lacking. The National Parks and Wildlife Service (‘NPW Service’) maintains two databases, namely the:
The HHIMS manages information on around 9000 heritage items, most of which are in national parks and reserves, and includes information on heritage items, which is linked into a range of primary and secondary documents. HHIMS replaced the previous NPWS Historic Places Register in August 2002, and enables the NPW Service to meet its obligations under the Heritage Act 1977 (NSW).[77] AHIMS includes a database and recording cards for all Aboriginal objects, Aboriginal places and other Aboriginal heritage values in NSW that have been reported to the NPW Service and a database index of archaeological reports and a library of these reports.[78] The NPW Service website assures developers that a report from AHIMS does not represent a comprehensive list of all cultural heritage in a specified area, and lists recorded sites only. In any given area there may be a number of undiscovered, unrecorded and/or unreported Aboriginal objects.[79] Indeed, the NPW Act specifically states that if a person is aware of the location of an Aboriginal object and does not notify the Director-General within a reasonable time after becoming aware of that location, is guilty of an offence unless the person believes on reasonable grounds that the Director-General is aware of the location of that Aboriginal object.[80] Reasonable grounds would presumably include that the site location was recorded on AHIMS or HHIMS – which is not (as the website breezily admits) always a surety. The NPW Service only becomes involved when notified of a site and does not, as a general rule, undertake its own surveys for Indigenous cultural heritage. Reliance on the incomplete site register may give an inaccurate picture of the extent of known Indigenous cultural heritage in the area. Furthermore, site surveys which are undertaken as a result of a development application or a stop-work order[81] which rely solely on literature review and the Site Register will potentially produce an erroneous report.[82] The result is the destruction of Indigenous cultural heritage all over NSW because developers may not recognise Indigenous cultural heritage when they see it and unregistered sites are being destroyed out of (at times willful) ignorance. The NPW Service may use the argument that they are protecting Indigenous cultural heritage and sacred knowledge by not making the Register publicly available, yet this argument entrenches ignorance:
Aboriginal cultural heritage is at the bottom of the list when it comes to matters to be considered by [government] institutions with regards to development and planning. It is obvious that less concern will be shown for such issues if they remain largely unknown. Therefore this policy is working against the preservation of such sites.[83]
There is a further problem with the destruction of Indigenous cultural heritage through the lack of its publication; the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) places a positive requirement on the Local Council to provide public notification as soon as practicable after a development application is made. The Council must place the application and any accompanying information on public exhibition and give written notice of the application.[84] Given the secrecy surrounding much Indigenous cultural heritage, the requirement to have it displayed publicly may negate giving it out in the first place.
Under the NPW Act it is an offence for any person to knowingly permit the destruction, excavation of or damage to an Aboriginal object without first obtaining the consent of the Director-General of National Parks and Wildlife.[85] However this requirement is fragile – there is no direction as to what the Director-General must take into account before permitting wanton destruction of priceless Indigenous cultural heritage. Permits are issued ‘upon such terms and conditions as the Director-General thinks fit[86] and terms and conditions imposed ‘may include terms and conditions relating to the proper restoration of land disturbed or excavated’.[87] It is an offence to destroy, deface or disturb an Aboriginal site without consent of the Director-General, but again they may give consent ‘subject to such conditions and restrictions as are specified therein’,[88] and if refused there is a right of appeal.[89] This level of discretion is not appropriate when dealing with ancient and secret Indigenous cultural heritage protection – the conditions under which consent for its destruction should be publicly available, strictly regulated, and have been decided and implemented with the input of Indigenous people. Further, this Ministerial direction is not always implemented. In Williams v The Director-General of the Department of Environment and Conservation & Ors[90] the Applicant successfully contended that the Director-General had denied him natural justice:
The failure of the NPWS to adhere to its representations that a person such as Mr Williams would be involved in the identification and assessment processes denied him procedural opportunities to contribute to the decision-making process such that it was unfair in the particular circumstances.[91]
However a subsequent claim for the declaratory and consequential injunctive relief was unsuccessful.[92] Intention to destroy Indigenous cultural heritage can be difficult to prove and the deterrent effect of creating an offence is only as useful as its enforceability – since there are insufficient resources given to the NPW Service to identify where and when offences are occurring, let alone prosecute offenders, the offence can be rendered meaningless.
Although it is beyond the scope of this paper to consider other legislative frameworks or those outside NSW, I will briefly mention two other regimes that assist Indigenous people with the protection of sites and country: the Native Title Act 1993 (Cth) (‘NTA’), and the Aboriginal Cultural Heritage Act 2003 (Qld) (‘ACH Act’). The NTA can offer separate protection for Indigenous traditional knowledge through the use of Indigenous Land Use Agreements.[93] The requirement of connection and evidence of traditional law and custom required by the NTA[94] which give rise to native title rights and interests[95] has seen a stimulation of the practice of traditional law and custom, and a revival of its transmission. While native title has been a useful tool for spurring the transmission of cultural heritage, it does not provide primary protection and nor is it intended to. Heritage protection legislation in Australia is intended to provide this primary protection, yet frequently fails in this attempt in NSW. The recently adopted ACH Act attempts to codify protection for Indigenous cultural heritage in Queensland. Although the sanctions are weak, the strongest category of harm difficult to prove, and the duty of care owed by a proponent to the Aboriginal owners is heavily weighted in favour of the proponent, it is still a better attempt at Indigenous cultural heritage protection than the present legislative regime in NSW.
This paper has critically examined the protection afforded to Indigenous cultural heritage at the international, national and state level, and found it to be piecemeal, overly bureaucratised, unnecessarily vague, lacking in effective sanctions, and subject to the current Federal government’s refusal to acknowledge the unique place that Indigenous people, their traditional knowledge, and cultural heritage hold within Australian society. Indigenous cultural heritage requires sui generis protection, and Australian ratification of the Declaration on the Rights of Indigenous People. A strong legislative regime for the protection of the oldest living culture on Earth is an essential requirement for the protection of Indigenous cultural heritage. The current approach of the Federal Government – let the States/Territories deal with their own backyard and we will deal with the rest of it – is ineffective. The approach of the States and Territories to heritage protection is disparate, suffers from petty bureaucracy, and allows ignorant destruction of countless sites of significance to the irreparable loss of Indigenous cultural heritage. There is no simple solution for the protection of a culture that is often not to be publicly shared, ensuring that perpetuation of wilful ignorance can continue. A dedicated, independent, adequately funded, and Aboriginal run Heritage Protection Organisation[96] to work in tangent with a State wide survey of Indigenous cultural heritage would be a good starting point. The engagement of Indigenous people in the protection of their cultural heritage is essential, and plans of management under the NPW Act[97] are another way of achieving protection through partnerships, but adequate funding and capacity building are paramount. Protection of Indigenous cultural heritage is achievable, but the will of all parties involved to work co-operatively must be evident, and to date it is not.
[*] Tamzyn Chapman, BA (University of Sydney); LLB (University of Wollongong); MEScL (University of Sydney) candidate; Solicitor, NTSCORP Ltd.
[1] B Boer, ‘The Legal Framework of Heritage Conservation’ in Cultural Conservation – Towards a National Approach, (1995) Special Australian Heritage Publication Series Number 9, AGPS Canberra, 15. See also M Baird, ‘The End of Hope: An assessment on the draft Report of the Productivity Commission’s Inquiry into the Conservation of Australia’s Heritage Places’ (2005) National Environmental Law Review, Summer, 17.
[2] R White, ‘Environmental Crime in Global Context: Exploring the Theoretical and Empirical Complexities’ (2005) 16(3) Current Issues in Criminal Justice 271, 273.
[3] International Labour Office, ‘Indigenous Peoples. Living and Working Conditions of Aboriginal Populations in Independent Countries’ (1953) Geneva, International Labour Office, 89 cited in R Stavenhagen, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People’, [2002] AUIndigLawRpr 53; (2002) 7(3) Australian Indigenous Law Reporter 81.
[4] S Pritchard and C Heindow-Dolman, ‘Indigenous Peoples and international law: A critical overview’ (1998) 3 Australian Indigenous Law Reporter 473.
[5] Opened for signature 14 May 1954 entered into force 7 August 1956, accessed from <http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_
SECTION=201.html> at 20/10/07.
[6] Ibid, Preamble.
[7]. Recommendation Concerning the Preservation of Cultural Property Endangered by Public or Private Works signed by the President of General Conference and the Director-General on twenty-second day of November 1968 accessed from
<http://www.icomos.org/unesco/works68.html> at 20/10//07.
[8] Ibid (emphasis added).
[9] Ibid, art 2.
[10] Opened for signature 14 November 1970, entered into force 24 April 1972. See C Forrest, ‘Strengthening the International Regime for the Prevention of the Illicit Trade in Cultural Heritage’, (2003) 4 Melbourne Journal of International Law 592.
[11] [1982] 1 QB 349, 364 (Staughton J) cited in C Forrest, above n10, 597.
[12] Ibid, 597.
[13] Convention Concerning the Protection of the World Cultural and Natural Heritage 1972, accessed from <http://whc.unesco.org/archive/convention-en.pdf> at 20/10/07.
[14] Ibid, art 1.
[15] Above n 10, 606-7.
[16] ABC News ‘Sweden to return Aboriginal remains to Australia’ 19 October 2007, accessed from <http://www.abc.net.au/news/stories/2007/10/19/2064893.htm> at 21/10/07.
[17] ABC News ‘Battle to return remains continues’ 15 May 2007, accessed from <http://www.abc.net.au/news/stories/2007/05/15/1922839.htm> at 21/10/07.
[18] ABC News ‘Aborigines call for federal commitment on remains repatriation’ 6 August 2007, accessed from <http://www.abc.net.au/news/stories/2007/08/06/1997928.htm> at 20/10/07.
[19] National Parks and Wildlife Service ‘Aboriginal resting places around Sydney afforded special protection’ Media Release accessed from
<http://www3.environment.nsw.gov.au/npws.nsf/content/dec_media_min_050929_01> at
21/10/07.
[20] Accessed from
<http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163> at 6/5/08.
[21] Accessed from
<http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503> at 6/5/08.
[22] Rio Declaration on Environment and Development 1992, Principle 2, accessed from
<http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163> at 21/10/07.
[23] Ibid, Principle 7.
[24] Ibid, Principle 4.
[25] Ibid, Principle 5.
[26] Ibid, Principle 7.
[27] D Jones, ‘Traditional Knowledge in the Global Village’ (2000) 31(4) LASIE 45, 48.
[28] Ratified by Australia on 5 June 1992, entering into force on 18 June 1993 accessed from <http://www.cbd.int/> at 21/10/07.
[29] Ibid, Preamble.
[30] Ibid, art 8(j).
[31] J Naín, C Solis Librado, and F López, ‘The Implementation of Article 8(j) in Latin America: Examples from Chile, Mexico and Panama’ (2002) accessed from <http://www.international-alliance.org/documents/8j%20-%20Chile-%20Mexico-%20and%20Panama.pdf> at 20/10/07.
[32] M Davis ‘Indigenous Rights in Traditional Knowledge and Biological Diversity: Approaches to Protection’ [1999] AUIndigLawRpr 40; (1999) 4(4) Australian Indigenous Law Reporter 1.
[33] Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution 1 (XXIV), U.N. DOC. E/CN.4/1070> at 50-51 (1971) accessed from
<http://www1.umn.edu/humanrts/demo/1503Resolution1.html> at 6/5/08.
[34] S Pritchard and C Heindow-Dolman, above n 4.
[35] UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage 2003, III (2) accessed from <http://portal.unesco.org/en/ev.php-
URL_ID=17718&URL_DO=DO_TOPIC&URL_SECTION=201.html> at 20/10/07.
[36] Ibid.
[37] Entered into force on 20 April 2006, evolving from the 1989 resolution adopted by the UNESCO General Conference on the Safeguarding of Traditional Culture and Folklore.
[38] Accessed from <http://unesdoc.unesco.org/images/0013/001325/132540e.pdf> at 20/10/07.
[39] Accessed from <http://www.iwgia.org/sw248.asp> at 20/10/07.
[40] Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine.
[41] ABC News ‘PM defends refusal to sign UN Indigenous Bill’ 15 September 2007 accessed from <http://www.abc.net.au/news/stories/2007/09/15/2033812.html> at 20/10/07.
[42] See New South Wales Law Reform Commission (2000) ‘Sentencing: Aboriginal offenders’ Chapter 3 accessed from <http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3> at 20/10/07.
[43] See Human Rights and Equal Opportunity Commission ‘Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families April 1997’ accessed from
<http://www.humanrights.gov.au/social_justice/bth_report/report/preliminary.html> at 6/5/08.
[44] ABC News ‘Apology Anger marks opening of Parliament’ 12 February 2008 accessed from <http://www.abc.net.au/news/stories/2008/02/12/2160017.htm> at 6/5/08.
[45] Report of the National Estate (1974) AGPS, Canberra.
[46] Australian Bureau of Statistics (1988) Year Book Australia, 1988 1301.0 accessed from
<http://www.abs.gov.au/Ausstats/abs@.nsf/94713ad445ff1425ca25682000192af2/5cb5080f7a527fd0ca2569de0025c18c!OpenDocument> at 20/10/07.
[47] Ibid.
[48] Ibid (emphasis added).
[49] Australian Heritage Commission Act 1975 (Cth) s 30.
[50] Aboriginal and Torres Strait Islander (Interim Protection) Act 1984 (Cth) s 4.
[51] Aboriginal and Torres Strait Islander (Interim Protection) Act 1984 (Cth) s 3.
[52] Aboriginal and Torres Strait Islander (Interim Protection) Act 1984 (Cth) s 17.
[53] Aboriginal and Torres Strait Islander (Interim Protection) Act 1984 (Cth) s 26.
[54] J.F Waters, ‘Protection of Aboriginal Sites and Objects under the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984 (Cth)’ [1985] AboriginalLawB 82; (1985) 1(17) Aboriginal Law Bulletin 16.
[55] Jones Sen G.N. Parliament of Australia Hansard Second Reading Speech, 15 June, 1984, 3144.
[56] Niltye/Tnyere-Akerte (Junction Waterhole) near Alice Springs, Northern Territory.
[57] R Goldflam, ‘Noble Salvage: Aboriginal Heritage Protection and the Evatt Review’ [1997] AboriginalLawB 2; (1997) 3(88) Aboriginal Law Bulletin 4.
[58] Recommendation 4.1 ‘Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984’ (1997) 2 Australian Indigenous Law Reporter 433.
[59] Ibid, Recommendation 5.1.
[60] Aboriginal and Torres Strait Islander Commission Media Release 23 September 1998 ‘Aboriginal Cultural Heritage Protection to be Mainstreamed’ accessed from <http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?id=15843&table=PRESSREL> at 20/10/07.
[61] Ibid.
[62] M Baird, above n 1, 20.
[63] S Stone, MP, 29 June, 1999 Second Reading Speech Environment Protection and Biodiversity Conservation Bill, House Hansard, 7770; see also A Mackintosh and D Wilkinson, ‘EPBC Act : the case for reform’ (2005) 10(1) Australasian Journal of Natural Resources Law and Policy 139, 142.
[64] 16 July 2000.
[65] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(d).
[66] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(f).
[67] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(g).
[68] See for example Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ss201, 216.
[69] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 49A(c).
[70] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 505B(1).
[71] Environmental Protection and Biodiversity Conservation Act 1999 (Cth) s 505B(2).
[72] Commonwealth Government ‘Indigenous Heritage Laws’ accessed from
<http://www.environment.gov.au/heritage/about//indigenous/index.html> at 20/10/07.
[73] Heritage Act 1977 (NSW) s 139.
[74] Heritage Act 1977 (NSW) s 4.
[75] Heritage Act 1977 (NSW) s 146.
[76] National Parks and Wildlife Act 1974 (NSW) s 2A .
[77] Heritage Act 1977 (NSW) s 170.
[78] Accessed from
<http://www.nationalparks.nsw.gov.au/npws.nsf/Content/What+information+can+you+obtain+from+AHIMS> at 21/10/07.
[79] Ibid.
[80] National Parks and Wildlife Act 1974 (NSW) s 91.
[81] National Parks and Wildlife Act 1974 (NSW) s 91AA.
[82] M Organ, ‘A Conspiracy of Silence – the New South Wales National Parks and Wildlife Service and Aboriginal Cultural Heritage Sites’ [1994] AboriginalLawB 12; (1994) 3(67) Aboriginal Law Bulletin 4.
[83] Ibid, 18.
[84] Environmental Planning and Assessment Act 1979 (NSW) s 79.
[85] National Parks and Wildlife Act 1974 (NSW) s 87.
[86] National Parks and Wildlife Act 1974 (NSW) s 87(1).
[87] National Parks and Wildlife Act 1974 (NSW) s 87(2).
[88] National Parks and Wildlife Act 1974 (NSW) s 90(2).
[89] National Parks and Wildlife Act 1974 (NSW) s 90(3).
[90] [2004] NSWLEC 613 (Lloyd J).
[91] At [60].
[92] Williams v Director-General Department Environment and Conservation and Ors [2005] NSWLEC 165 (Bignold J).
[93] Native Title Act 1993 (Cth) Part 2 Division 3.
[94] Native Title Act 1993 (Cth) s 223(1).
[95] Native Title Act 1993 (Cth) s 223(3).
[96] M Organ, above n74.
[97] National Parks and Wildlife Act 1974 (NSW) Part 5.
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