Reforms must give Aboriginal people central role in heritage protection
By EDO NSW Aboriginal Solicitor Mark Holden
9 July 2014
As one Aboriginal Elder puts it: ‘our culture is our identity’. But under the current system in NSW, the experience of Aboriginal clients of EDO NSW is that it is an uphill battle to protect their culture and heritage.
Between 2011 and 2013, 273 applications for Aboriginal Heritage Impact Permits (AHIPs) were lodged with the NSW Office of Environment and Heritage (OEH). When granted, AHIPs permit the holder to damage or destroy Aboriginal objects or places. Of the 273 applications, only two applications were refused.
It is perhaps also telling that during this period only one prosecution was brought by OEH for harming Aboriginal objects (the Ausgrid case).
Under the current system, whenever someone wants to develop or disturb culturally significant areas, consultation mechanisms with the Traditional Owners are triggered. This is a reactionary process and is inadequate for the level of consultation and assessment required to understand and manage the impact to these areas. Existing measures to proactively protect even small cultural areas, such as registering Aboriginal places under the National Parks and Wildlife Act 1974 (NSW) (NPW Act), require immense amounts of documented evidence. Because Indigenous knowledge is passed on orally, and given the history of dispossession of Aboriginal lands and peoples, these applications can take years to develop and are very few in number.
Public Database of Significant Heritage Sites
To address these problems the NSW Government is proposing reforms to the laws governing Aboriginal Heritage. The key component of the reforms is to develop stand-alone legislation to protect Aboriginal culture and heritage in NSW, much like every other State and Territory in Australia (except Tasmania). This is an important move as Aboriginal culture and heritage is currently regarded as ‘stones and bones’ under the NPW Act. The proposed reforms aim to establish Local Aboriginal Heritage Committees to register significant heritage sites on a publically available Aboriginal Culture and Heritage Database. These registered sites will include recommendations from these local committees as to where development can and cannot occur and provide an avenue for potential developers to negotiate a resolution for future development.
However, greater clarity is required on how the stand-alone legislation will be integrated into the wider planning framework (including any future reforms), and how to ensure the current regime of simply issuing AHIPs to destroy cultural heritage to make way for development does not continue.
The objectives of the proposed reforms
The proposed reforms include new objectives to protect Aboriginal cultural heritage values that are identified as important to local Aboriginal people, not just to an outside body or person. This includes the cultural lands, waters and natural resources, which is a much needed improvement from the current ‘stones and bones’ approach.
However, the new objectives make no mention of the need to ensure ecologically sustainable development (ESD). This is a fundamental concept of environmental and planning law that is widely recognised both domestically and internationally. Most important is the need to consider intergenerational equity, one of the fundamental principles of ESD. Intergenerational equity is vital to maintaining Aboriginal identity and community beyond the present generation – just as Aboriginal people have done for thousands of generations before.
Who speaks for Country?
The reforms propose that the Local Aboriginal Heritage Committees, made up of Aboriginal people from the local area, will develop Plans of Management to identify and manage local Aboriginal heritage, and directly negotiate with prospective developers who would impact on any registered sites. While this gives local Aboriginal communities a greater role as custodians of their culture and heritage rather than the Government, there are a number of concerns regarding the functions of these Local Committees, such as how they will remain transparent, accountable, and appropriate for their local area.
The history of dispossession of Aboriginal people in NSW has resulted in the fracturing of traditional groups. Problems arise when some individuals claim to speak for a part of country and others dispute their authority to do so. These problems get worse when a proponent or developer takes sides in this dispute, usually with the party who is willing to agree to their demands.
EDO NSW, in its submission on the proposed reforms, recommended that the actions and outcomes of Local Committees and OEH should be overseen by a new Independent Commission. Clear rules must also be laid down for committee processes, especially for resolving ethical issues or disputes.
An ongoing problem is the lack of enforcement of Aboriginal culture and heritage protections. Since 2011, the only prosecution against a developer for harming Aboriginal objects was in the Ausgrid case. OEH prosecuted Ausgrid for harming rock engravings in Cromer, in Sydney’s north.
Ausgrid pleaded guilty to harming the rock engraving, caused by incorrect archaeological advice that there were no Aboriginal objects that would be impacted. The Court considered the guilty plea and mitigating factors, including Ausgrid’s remorse, its attempts to fence off and prevent further harm to what was left of the engravings, and an inability to establish, exactly, to which Aboriginal group the engravings were culturally significant. The maximum penalty for the offence is $220,000 for corporations. The penalty handed down by the Court was $4,690. In response, the Metropolitan Aboriginal Land Council, responsible for the Cromer area, expressed their dismay at the size of the penalty.
New South Wales has a proud tradition of ‘open standing’ for community members to bring enforcement proceedings where environmental and planning laws are breached, including under section 193 of the NPW Act. We believe it is essential that under the proposed reforms, Traditional Owners be empowered and assisted to bring legal actions themselves to uphold and enforce the laws that protect their culture and heritage. However, the proposed reforms do not specify whether or how this would be achieved. In addition, EDO NSW recommends revising sentencing principles and ensuring that a wide range of legal penalties are available for offences, such as compensation, remediation or injunctions.
Now that the public comment process on the discussion paper has ended, the NSW Government will finalise its recommendations. A draft Bill is expected to be presented to the public for further comment by either late 2014 or early 2015. EDO NSW looks forward to further engagement in this process.
The NSW Government reforms must include an achievable way to give Aboriginal peoples a central role in determining what should be protected and whether impacts should be permitted. This long-awaited reform process must deliver effective, empowering and transparent protection for Aboriginal culture and heritage in accordance with principles of ecologically sustainable development.
 Chief Executive, Office of Environment and Heritage v Ausgrid  NSWLEC 51