Introduction
People have been forced away from the lands and made to feel ashamed of their knowledge and actively told to forget their knowledge and then organisations like this one that’s tried with limited resources to try and sort of gather back that knowledge and look after it. … But it’s a losing battle. Then governments and others think ok well because Aboriginal people don’t live on that property now or manage it actively at the moment then that’s just up for grabs.Footnote 1
This opening quotation represents the “sense of marginalisation, dispossession and injustice still felt by members of [New South Wales Aboriginal] communities today, but equally confirm[s] the strong connection to Country and the importance of access to Country for the wellbeing of Aboriginal peoples whether on Country or otherwise.”Footnote 2 Australia’s First Peoples comprise Aboriginal people from mainland Australia and Torres Strait Islander people from the islands to the north of the mainland.Footnote 3 Aboriginal and Torres Strait Islander peoples collectively constitute one of the world’s longest continuing cultures, with over 60,000 years of connection to Country and culture.Footnote 4 As Ngunnawal Elder Tina Brown, has stated,
Indigenous communities keep their cultural heritage alive by passing their knowledge, arts, ceremonies and performances from one generation to another, speaking and teaching languages, protecting cultural materials, sacred and significant sites, and objects. For Indigenous Australians, the land is the core of all spirituality and this relationship and the spirit of “Country” is central to the issues that are important to Indigenous people today.Footnote 5
The tangible cultural heritage of Aboriginal and Torres Strait Islander people includes landscapes, water, sacred sites, sites of recent historical significance,Footnote 6 objects such as spearheads,Footnote 7 ancestral remains, rock engravings, minerals, written literary works, artworks, and native plants and animals traditionally used for food and medicine.Footnote 8 Intangible heritage includes relationships with tangible heritage, oral stories and ceremonies associated with tangible heritage,Footnote 9 and agricultural, scientific and ecological knowledge.Footnote 10 Despite the term “heritage” implying something ancient or past, Aboriginal and Torres Strait Islander heritage “includes items which may be created in the future.”Footnote 11 While some Aboriginal and Torres Strait Islander communities may share traditions, laws, languages, and cultural heritage, great diversity exists within these two groups.Footnote 12 This is exemplified by the existence of more than 250 different Aboriginal and Torres Strait Islander languages.Footnote 13 A group, and the individuals within it, may also have unique needs and aspirations that reflect “customary rights and duties, social positions, political and economic motivations, and personal capacities.”Footnote 14
Successive colonial government policies have had a traumatic effect on cultural heritage. Early policies, justified at the time as necessary to “protect” Aboriginal and Torres Strait Islander people, dictated “where Aboriginal people could live and work … [and] … their freedom of movement.”Footnote 15 The lack of capacity to access land or participate in government decisions left cultural heritage “vulnerable and endangered” because Aboriginal and Torres Strait Islander people could not access land to maintain their cultural heritage or participate in decision making that authorized its destruction.Footnote 16 These threats continue today, alongside threats posed by approved and illegal destruction, through activities such as development and agriculture, limited funding for cultural heritage conservation, invasive species, and climate change.Footnote 17
Colonial government intrusions into the affairs of Aboriginal and Torres Strait Islander people are at odds with the key principle in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of informed consent secured in accordance with decision-making processes and institutions determined by Indigenous peoples themselves.Footnote 18 The aim of this article is to examine the extent to which a recently proposed Aboriginal Cultural Heritage (ACH) law in the state of New South Wales (NSW), Australia, advances the minimum standards for cultural heritage protection outlined in the UNDRIP.
In 2009, Australia committed to implementing laws consistent with the human rights principles in the UNDRIP.Footnote 19 The UNDRIP endorses the rights of Indigenous peoples to, among other things,
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• provide informed consent to legislative or administrative measures that may affect them;Footnote 20
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• participate in decision making in matters affecting their rights, through representatives chosen by themselves and in accordance with their decision-making processes and institutions;Footnote 21
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• maintain, protect, control and develop their cultural heritage;Footnote 22 and
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• be compensated for any unauthorized destruction of their cultural heritage.Footnote 23
The UNDRIP asserts the rights contained within it, including the above rights, as the minimum standards necessary for the survival, dignity, and well-being of Indigenous peoples.Footnote 24 However, the UNDRIP is not a binding international instrument. Even if it were, the Australian federal system requires national legislation to activate the rights espoused in that instrument, although this does not mean that state and territory legislatures cannot themselves enact legislation that gives effect to the UNDRIP principles. It is in this context that this article considers NSW’s scorecard for advancing UNDRIP principles through a recent draft ACH law.
The draft Aboriginal Cultural Heritage Bill 2018 (NSW) (ACH Bill) proposes seven objectives:
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(1) recognize that ACH belongs to Aboriginal people;
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(2) establish a legislative framework that reflects Aboriginal people’s responsibility for, and authority over, ACH;
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(3) recognize ACH as a living culture that is intrinsic to the well-being of Aboriginal people;
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(4) establish effective processes for conservation and management of ACH and regulate potentially harmful activities to achieve better outcomes for Aboriginal people and the wider NSW community;
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(5) collect and use information about ACH in a “culturally sensitive manner” to support planning, conservation, and regulatory actions;
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(6) promote understanding of, and respect for, ACH among all NSW people; and
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(7) enable and support voluntary actions that conserve ACH.Footnote 25
At first glance, these objectives advance the UNDRIP principles. Objectives 1, 2, and 7 are consistent with the UNDRIP principle of Aboriginal ownership of, and responsibility for, ACH, in accordance with their own decision-making processes and institutions.Footnote 26 Objectives 3 and 4 reflect the UNDRIP’s recognition of the link between ACH ownership, decision making, and Aboriginal well-being.Footnote 27 Objective 5 seeks to balance respect for cultural rules and sensitivity regarding ACH information, in accordance with Article 31 of the UNDRIP, with the need for informed decision making on other matters. Objective 6 promotes the UNDRIP principle of respect for the customs and traditions of Aboriginal people.Footnote 28
Each objective can therefore help advance the UNDRIP principles in the NSW ACH context.Footnote 29 This article examines the extent to which the proposed mechanisms in the ACH Bill maximize this opportunity. Such an examination helps hold policymakers accountable to the global and local community, highlights areas where existing and proposed laws may need to be strengthened, and contributes ideas on how to apply generic UNDRIP principles in local contexts. The article begins by explaining where NSW ACH regulation fits within the national context. It then examines the extent to which the proposed legal framework advances the above objectives of the ACH Bill, and related UNDRIP principles, in the NSW context. The examination follows the socio-legal research method, analyzing law within the social situation to which the law applies.Footnote 30 In this article, we contextualize the abstract principles in the UNDRIP within the NSW context. The article takes a critical analysis approach with a human rights focus, examining where the ACH Bill succeeds or fails in achieving its own objectives and the UNDRIP principles. The analysis draws on submissions of Aboriginal people to government inquiries, publicly available data, consultation reports with Aboriginal people, academic scholarship, and the authors’ collective prior research on ACH policies.Footnote 31
ACH regulation in NSW
The main reason that Australian states and territories have made ACH laws is to preemptively reconcile conflicts that may arise between the interests of Aboriginal and Torres Strait Islander people, private landholders, developers, the public, environmental groups, and governments.Footnote 32 Reconciling these interests requires some limits to the full implementation of the UNDRIP principles. For example, it is impractical to recognize Aboriginal sovereignty over all private land. Unfortunately, and despite recent law reforms around Australia,Footnote 33 most mainland ACH laws exceed pragmatic limits and accord unequivocal priority to developers, especially for major projects such as mining.Footnote 34 NSW ACH legislation, in particular, has been criticized for inadequately respecting the cultural heritage of Aboriginal people.Footnote 35
NSW is the only Australian state not to have stand-alone ACH legislation.Footnote 36 Instead, ACH protection falls under the generic Heritage Act 1977 or, predominately, the National Parks and Wildlife Act 1974 (NPWA).Footnote 37 The Heritage Act does not specifically refer to ACH. It contains a “laborious” process for registering Aboriginal sites or objects of “State heritage significance.”Footnote 38 The process can require the public disclosure of secret cultural information.Footnote 39 The Heritage Act allows for the destruction of ACH upon the issue of an excavation permit. The government routinely grants these permits without any consultation with Aboriginal people.Footnote 40 Unsurprisingly, the NSW Heritage Register contains only 34 ACH items compared to 1,690 non-Aboriginal heritage items.Footnote 41
ACH matters in NSW have been addressed mainly through the NPWA,Footnote 42 which is administered by the Office for Environment and Heritage (OEH). The OEH recognizes that regulating ACH alongside wildlife is “offensive.”Footnote 43 It also concedes that the current provisions fail to acknowledge the importance of ACH in the lives of Aboriginal people.Footnote 44 Despite these acknowledgements and the existence of sanctions for the unauthorized destruction of Aboriginal “objects” or declared “Aboriginal places,” the OEH has approved 95–97 percent of applications for permits to harm ACH.Footnote 45 This approval rate, and the exemption of “state-significant” developments from permit requirements,Footnote 46 underpins widespread criticism that current ACH laws authorize ACH destruction.Footnote 47
Other key issues with the current legal framework include a focus on tangible cultural heritageFootnote 48 and the conservation of ACH of archaeological or public significance,Footnote 49 the vesting of key ACH decision in developers, archaeologists, and government officials,Footnote 50 smaller maximum penalties for ACH harm compared to related environmental offences,Footnote 51 and a historical lack of prosecutions of ACH offences.Footnote 52 In recent developments, the newly formed Heritage New South Wales, located in the Department of Premier and Cabinet, now has responsibility for ACH. Perhaps this development reflects a more serious consideration of ACH by the NSW government? Nevertheless, the legislation remains the same.
Since 2011, the OEH has explored new stand-alone (or sui generis) ACH laws.Footnote 53 The OEH convened an independent Aboriginal Culture and Heritage Reform Working Party in 2012 with specified terms of reference and a diversity of skills and experience, but it included both Indigenous and non-Indigenous members led by a non-Indigenous lawyer.Footnote 54 That same year, the OEH conducted two stakeholder consultations, and the working party examined the current NSW approach, reviewed the regulatory systems in other Australian jurisdictions, and considered the input from the two consultations undertaken by the OEH.Footnote 55 By the end of 2012, the working party had provided 23 recommendations for reform.Footnote 56 These recommendations provided the foundation for the NSW government’s first proposed model for an ACH system in 2013.Footnote 57 The model did not take into account intangible heritage and focused on streamlining the pathway for permit applications to harm ACH rather than aiming to protect ACH.
During this time, the OEH, through the Namoi Catchment Management Authority’sFootnote 58 Aboriginal Advisory Committee, provided grant funding to the Indigenous Knowledge Forum, based at the University of Technology Sydney, to investigate developing a model law for the recognition and protection of Aboriginal knowledge associated with natural resource management. In 2014, the Indigenous Knowledge Forum published a white paper espousing the establishment of stand-alone legislation for the recognition and protection of Aboriginal knowledge.Footnote 59 While not adopted by the OEH, the model was utilized in its subsequent work and comprehensive consultation processes during 2017, leading to the ACH Bill in 2018. The NSW government released the ACH Bill for public consultation in 2018. After considering submissions, the government intended to introduce a version of the Bill to the NSW Parliament to enact as law—this has yet to occur.Footnote 60
The following analysis considers the extent to which the mechanisms proposed in the ACH Bill advance the proposed objectives and related UNDRIP principles. The discussion is grouped under five broad themes:
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• broader recognition of ACH values;
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• decision making by Aboriginal people;
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• better information management;
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• improved protection, management, and conservation of ACH; and
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• greater confidence in the regulatory system.Footnote 61
Each section considers how the proposed mechanisms improve upon the current framework, advance the proposed objectives in the ACH Bill, and reflect the UNDRIP principles. Each section considers pragmatic alternatives to provisions that fail to advance the proposed objectives and/or UNDRIP principles.
Broader recognition of ACH values
The objective of existing legislation is to conserve places, objects, and features of significance to Aboriginal people or the public.Footnote 62 The focus on Aboriginal places and objects continues in the definition of an Aboriginal place as a place declared by the minister to be an Aboriginal place.Footnote 63 The legislation defines an Aboriginal object as “[a]ny deposit, object or material evidence (not being a handicraft made for sale) relating to the Aboriginal habitation of … NSW, being habitation before or concurrent with (or both) the occupation of that area by persons of non-Aboriginal extraction, and includes Aboriginal remains.” The ACH Bill proposes a new ACH definition.Footnote 64 The Bill defines ACH as “[t]he living, traditional and historical practices, representations, expressions, beliefs, knowledge and skills (together with the associated environment, landscapes, places, objects, ancestral remains and materials) that Aboriginal people recognise as part of their cultural heritage and identity.”Footnote 65 This substantially expands the current legal focus on objects and places. However, the new definition fails to recognize the holistic nature of ACH because it provides a separate definition of intangible ACH.Footnote 66 Intangible ACH is defined as
[a]ny practices, representations, expressions, beliefs, knowledge or skills comprising ACH (including intellectual creation or innovation of Aboriginal people based on or derived from ACH), but does not include Aboriginal objects, Aboriginal ancestral remains or any other tangible materials comprising ACH.Footnote 67
The ACH Bill does not make clear that the defined term “Aboriginal cultural heritage” includes the defined term “intangible Aboriginal cultural heritage.” Further, the definition does not recognize the potential for intangible ACH to evolve and adapt in the future. Aboriginal knowledge and cultural expressions are “dynamic, innovative and constantly responding or adapting to the needs of the community, their environment and sense of place.”Footnote 68 The broader recognition of ACH values could be advanced by defining ACH in a manner that includes intangible ACH and by extending the definition to include ACH created in the future.Footnote 69
Decision making by Aboriginal people
The ACH Bill proposes three mechanisms to advance a framework that reflects Aboriginal people’s ownership of, and responsibility for, ACH.Footnote 70 First, the Bill proposes a central ACH Authority. Second, it proposes the transfer of ACH ownership to this Authority. Third, it creates local panels to advise the central Authority on local ACH matters. During consultations on the ACH Bill, many Aboriginal people asserted a “strong preference” for decision-making structures that prioritize the voices of local cultural authorities.Footnote 71 Local cultural authorities are Aboriginal people with customary law responsibilities for ACH within an Aboriginal language group. This prioritization of local voices is necessary if the NSW government is to advance decision making by Aboriginal people and the UNDRIP principle of respecting Indigenous decision-making institutions.Footnote 72
This section examines the proposed ownership structure and process for forming the new entities in order to determine the extent to which they are capable of prioritizing the voices of Aboriginal people, especially local cultural authorities. Subsequent sections examine the proposed functions of the new entities.
ACH ownership
Current law vests ownership of Aboriginal objects in the Crown.Footnote 73 It excludes compensation payments for this usurpation of ownership and makes no provision for the ownership of other types of ACH.Footnote 74 It instead vests the chief executive of OEH with legal authority to care for and protect Aboriginal objects and places on public and private land.Footnote 75 The ACH Bill aims to “recognize” that ACH belongs to Aboriginal people and to establish a legal framework that reflects Aboriginal people’s authority over ACH.Footnote 76 As stated above, a framework that reflects Aboriginal authority is one that recognizes the ownership rights of local Aboriginal groups with traditional links to the area.Footnote 77 Unfortunately, the ACH Bill does not recognize the ownership rights of local groups. It instead transfers ownership of, and responsibility for, Aboriginal objects and ancestral remains to a central ACH Authority, “to hold … on behalf of Aboriginal people.”Footnote 78 Repatriation of objects or ancestral remains to local groups is at the discretion of the centralized Authority,Footnote 79 and the ACH Bill expressly excludes the possibility of compensation for local Aboriginal groups denied a repatriation request.Footnote 80
Further, the ACH Bill does not recognize Aboriginal ownership rights over other types of ACH. For example, the Bill does not recognize the right of Aboriginal people to control access to sacred sites on public lands. Existing Australian laws demonstrate the capacity of the ACH Bill to do more to advance its objectives and the UNDRIP principles. For example, current federal law at least allows Aboriginal people with a traditional connection to a public area to apply for rights to control access to sacred sites in the area, even though the threshold test is high.Footnote 81 Current NSW law allows Aboriginal people to pick protected plants on private lands with the landowner’s permission but without the need to apply for a government license.Footnote 82 These examples demonstrate the capacity of the ACH Bill to recognize Aboriginal ownership of more ACH without displacing the Western property rights system.
ACH Authority
Current law establishes an ACH Advisory Committee to advise the government on “identification, assessment and management” matters, with final decision-making power resting with a range of government ministers.Footnote 83 The committee comprises 13 voting members.Footnote 84 These must include a nominee from the Heritage Council of NSW, the NSW Aboriginal Land Council (created under state land laws), and the NSW entity representing local cultural authorities recognized under federal law.Footnote 85 Aboriginal individuals may self-nominate.Footnote 86 The current law requires the minister to appoint Aboriginal people involved in ACH at the local level who have an understanding of ACH management issues.Footnote 87 Despite the establishment of the Advisory Committee, decision-making power in relation to “the protection of Aboriginal objects and Aboriginal places in New South Wales” rests with the chief executive of the OEH.Footnote 88 This does not accord with the UNDRIP principles that emphasize Indigenous peoples’ right to control their cultural heritage.Footnote 89
The ACH Bill, on the other hand, establishes an ACH Authority and a board to manage the Authority’s affairs.Footnote 90 The Authority will fall under the portfolio of a minister, but the Bill expressly provides it will not be “subject to the control or direction of the Minister.”Footnote 91 Aside from stipulating that the minister will appoint board members, and requiring the minister to appoint a representative of the NSW Aboriginal Land CouncilFootnote 92 and to consult the minister overseeing the NSW Aboriginal Land Council when appointing board members,Footnote 93 the Bill provides no further detail on the nomination and selection process.Footnote 94 It does include a footnote that the government intends the processes “to be community driven” to ensure that there is “cultural legitimacy” and necessary “skill and expertise.”Footnote 95
There are multiple concerns with these provisions (or lack thereof). First, an intent to ensure a “community-driven” process for nominating board members is vague and non-committal.Footnote 96 The failure to prescribe a nomination process in the ACH Bill denies the community the chance to comment on the proposed process. The final Bill presented to Parliament should contain a nomination process that has been designed in consultation with Aboriginal people.Footnote 97 This is critical to ensure cultural legitimacy.Footnote 98Alternatively, the Bill could provide an interim method for appointing a board and prescribe that the interim board stay in place until regulations provide a process for nominating a board that has been designed with the community.
Second, the ACH Bill does not specify the status of the Authority beyond it being a NSW government agency.Footnote 99 This classification allows the Authority to secure the privileges of a NSW government agency, such as financial support.Footnote 100 However, the NSW rules regarding government agencies prescribe different remuneration rates for board members depending on the status of the agency,Footnote 101 and the bill fails to clarify the Authority’s status. This allows the minister to determine the board member remuneration rates “from time to time.”Footnote 102 Considering the changeable nature of political priorities, the Bill should safeguard a minimum status for the Authority to ensure a transparent process for determining member remuneration.Footnote 103
Third, the ACH Bill does not carry forward the current requirement that the minister only appoint Aboriginal people to the Board if they are involved in ACH at the local level and have an understanding of ACH management issues.Footnote 104 While perhaps overly prescribed, the composition of the current ACH Advisory Committee under the NPWA ensures engagement with local cultural authorities or knowledge holders within Aboriginal communities. In comparison, the Bill merely requires the minister to appoint “Aboriginal persons” to the Board.Footnote 105 The ACH Bill defines an “Aboriginal person” according to the three-step definition most commonly used in Australia—namely, a person who “(a) is a member of the Aboriginal race, and (b) identifies as an Aboriginal person and (c) is accepted by the Aboriginal community as an Aboriginal person.”Footnote 106 This definition allows for self-identification and recognition,Footnote 107 but additional clarification is required to ensure the appointment of individuals involved in ACH at the local level or who have an understanding of ACH management issues.Footnote 108 This is important since connection to Country is crucial for the proper management of ACH. This relates to the right to speak for Country and the Community: “[T]he right to speak for Community should be held by Aboriginal community members descended from the traditional custodians of the land.”Footnote 109 As noted by one of the participants in the consultations leading to the white paper referred to above,
[t]raditional owners should have first rights over anybody. The key group is the first mob with respect to each area. You need proven connection to country—direct lineage to the particular area. Aboriginal communities aren’t all the one clan. There are differences in how clans, and members of clans are described.Footnote 110
Fourth, the ACH Bill stipulates appointment processes that do not prioritize the voices of local cultural authorities.Footnote 111 First, the Bill vests the power to appoint board members in the minister.Footnote 112 The ACH Bill outlines three appointment processes that the minister must comply with: the appointment of Aboriginal people, the appointment of a representative of the NSW Aboriginal Land Council,Footnote 113 and consultation with the minister overseeing the NSW Aboriginal Land Council before making an appointment.Footnote 114 The NSW Aboriginal Land Council represents all Aboriginal people living in NSW, including Aboriginal people that have moved to NSW from other states and territories. Although the NSW Aboriginal Land Council also represents Aboriginal owners, being Aboriginal people registered as having traditional or familial links to specific areas,Footnote 115 the register of Aboriginal owners is largely incomplete.Footnote 116 This raises the concern that the NSW Aboriginal Land Council does not sufficiently represent the voices of people with cultural authority to speak for ACH. Greater government investment in completing the register would advance the cultural authority of the NSW Aboriginal Land Council to speak for ACH. An additional requirement for the minister to consult the NSW entity responsible for promoting the interests of local cultural authorities recognized under federal law would help ensure the cultural legitimacy of the Board and consistency with federal law.Footnote 117
Of serious concern is that, although the minister must comply with the procedural fairness rule that a person has a right to respond to a threat of removal,Footnote 118 the minister will have the power to remove a board member at any time, without reason.Footnote 119 The government provided three reasons for this power:
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(1) The power is consistent with the minister’s power to appoint the Board.Footnote 120
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(2) The power is necessary given that the minister “is accountable to Parliament and the public for the administration of the legislation.”Footnote 121
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(3) The power enables “the Minister to act as a ‘circuit breaker’ in the event of a breakdown in communication between members.”Footnote 122
These reasons are unconvincing. The power effectively enables the minister to control the Authority by “unjustly”Footnote 123 removing members with contrary views.Footnote 124 This completely undermines the clear statement in Clause 7 of the ACH Bill that the Authority is not subject to ministerial control or direction.Footnote 125 It also raises doubts as to whether, in practice, the Authority will function any differently to the current Advisory Committee.
Local ACH consultation panels
Article 18 of the UNDRIP encourages colonial governments to recognize Indigenous decision-making institutions. In NSW, the strong preference is for ACH decision-making power to vest in local cultural authorities, being people with traditional links to the land. Currently in NSW, the Aboriginal Land Rights Act 1983 vests Local Aboriginal Land Councils (LALCs) with responsibility for local ACH, in the absence of registered Aboriginal owners for that area.Footnote 126 LALCs comprise members with contemporary, historical, or traditional links to an area.Footnote 127 They also operate within geographical boundaries that reflect local government areas, not cultural groups.
On first glance, the proposed ACH Bill honors the preference for ACH decisions to rest with local cultural authorities by creating local panels. On closer inspection, the Bill requires the proposed ACH Authority to vest existing LALCs with the power to coordinate the establishment of local panels.Footnote 128 This does not address the concerns of some Aboriginal people regarding the role of LALCs in ACH management.Footnote 129 For example, during the Aboriginal community consultations that were part of Recognising and Protecting Aboriginal Knowledge Associated with Natural Resource Management, a project funded by the North-West Local Land Services, concerns were raised regarding the involvement of LALCs in the management of, and decision-making process in relation to, Aboriginal knowledge.Footnote 130 These concerns were based on the composition of the leadership of LALCs, where representation from cultural knowledge holders in the communities was not included.Footnote 131
While it may be expedient to vest power to coordinate the establishment of local panels in already established bodies, it cannot be assumed that LALCs fully represent the voices of people with cultural authority to speak for ACH, while the register of Aboriginal owners with traditional links to the land remains incomplete. This further justifies the investment of resources to complete the register in order to provide a firmer foundation on which to build local panels that are a “recognised source of cultural authority at the local level.”Footnote 132
Further, the ACH Bill provides that “procedures, policies and guidelines with respect to the establishment, membership and operation of Local. … Panels are to be developed by the ACH Authority through a process of consultation with the Aboriginal community.”Footnote 133 Consultation does not strictly reflect the intent of Article 19 of the UNDRIP, being “free, prior and informed consent” to the adoption of relevant legislative or administrative measures. However, the diversity of Aboriginal people in NSW may make it difficult to secure consent from every person. Within the proposed centralized system, one way to move closer towards informed consent would be to require the Authority to make the proposed procedures available for public comment before adoption. Another may be that the Authority put the proposed rules to the Aboriginal people of NSW to vote on.
A final point regarding local panels is their advisory nature. While the ACH Bill vests local panels with a role “in decisions that affect Aboriginal cultural heritage in relation to that area or aspect,”Footnote 134 it also states that local panels shall “advise the ACH Authority in relation to that area or aspect” and advise the ACH Authority on various other matters, including information to be included in the ACH Information System. By utilizing the terms “advise” or “advice,” the ACH Authority is able to reach a decision that is contrary to the advice of the local panels. Consequently, the ACH Bill has not secured the role of the local panels in making decisions in relation to their ACH.Footnote 135 This raises the question of whether the Bill meets the requirements of Article 18 of the UNDRIP—namely, “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.” This point in turn raises questions as to the extent to which the ACH Bill advances its own aim of establishing a legislative framework that reflects Aboriginal people’s responsibility for, and authority over, ACH. In NSW, it is critical that decisions in relation to ACH are made by, or with the free, prior, and informed consent of, local communities.Footnote 136 Accordingly, the Bill should be revised to reflect the need for local panels to consent to decisions that affect ACH in their area.
Better information management
Currently, the NSW government administers the Aboriginal Heritage Information Management System (AHIMS). The AHIMS provides people with access to information on 93,000 Aboriginal objects and places and 13,500 ACH assessment reports.Footnote 137 Anyone can submit information on an Aboriginal object or place using a “site card.” The government reviews the card to decide what information to upload.Footnote 138 This includes whether to attach access conditions, such as restricting access to secret or sensitive information.Footnote 139
Issues with the current system include:
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• while sacred, sensitive, or confidential information may be subject to access conditions, it is not an offence to breach these conditions;Footnote 140
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• the government makes the final decision on what information to upload and the conditions to attach, not the local cultural authorities;Footnote 141
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• despite the apparent number of records, the database is incomplete;Footnote 142 and
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• the AHIMS does not support ACH information unrelated to objects and places.
The NSW government recognizes that information management is critical to the management of ACH.Footnote 143 Accordingly, the ACH Bill proposes to transfer ownership and oversight of a new information system to the ACH Authority.Footnote 144 The system will comprise two databases, being a restricted access database and a publicly available online database.Footnote 145 Registration is not limited to information on objects or places. The expectation is that the public database will hold ACH assessment reports, management plans, local maps, strategic plans, information on ACH values, and intangible ACH that is not widely known.Footnote 146 The restricted database can contain ACH information that has special access requirements under customary law.
Self-determination is central to the operation of the UNDRIP, and this principle has been adopted in Australian approaches to the management of Aboriginal and Torres Strait Islander cultural heritage in instruments such as the Australian Institute of Aboriginal and Torres Strait Islander Studies’s (AIATSIS) Code of Ethics for Aboriginal and Torres Strait Islander Research.Footnote 147 Culturally appropriate information systems support decision making by Aboriginal people. Footnote 148 For example, databases can record intangible ACH to enable sharing with future generations. They can also create legal rights, whereby the registrant has the legal right to control access to, and use of, the intangible ACH. However, databases also present a significant risk to ACH. For instance, providing access to one person can lead to inadvertent disclosures to unauthorized third parties. Databases can also enable the movement of information and knowledge into the public domain and out of the control of Aboriginal people.Footnote 149 Unfortunately, despite the transfer of ownership and administrative responsibility to the ACH Authority, the proposed system does little to minimize these risks. The approach to documenting ACH as proposed in the Bill is flawed for three key reasons. First, decisions to register ACH are not subject to the prior informed consent of local cultural authorities or knowledge holders. Second, access is not restricted to those authorized by local cultural authorities, and, third, the databases may operate to facilitate the exploitation and misappropriation of ACH, especially intangible ACH, contrary to the wishes of local cultural authorities.
The ACH Bill provides few details on how the Authority is to maintain and establish the system or to regulate the use and collection of intangible ACH.Footnote 150 It instead tasks the Authority with developing rules regarding collection, registration, access, and use.Footnote 151 This positions the Authority as the arbiter on important decisions regarding local intangible ACH. For example, the Authority may delegate the registration function of the restricted database to a single member of the Authority, a LALC, a NSW government agency, a local council, or anyone else to be determined.Footnote 152 Decisions on whether to register intangible ACH may require consideration of sensitive matters. It is inappropriate to allow the Authority to exercise this function, let alone to delegate it.
Unfortunately, the ACH Bill is silent on the rights of individuals or communities to challenge the registration of intangible ACH or to request the removal of ACH registered contrary to community protocols or customary law.Footnote 153 Further work is required to ensure the system operates in a culturally appropriate fashion and in accordance with the UNDRIP principle of informed consent by local cultural authorities to the registration of their intangible ACH.Footnote 154 As identified in the AIATSIS Code of Ethics, Aboriginal people have the right to control the use, and protect the integrity, of their cultural heritage as well as maintain the secrecy and control the recording of intangible ACH.Footnote 155
Regarding the restricted access database, the ACH Bill permits access by local panels, the Board of the ACH Authority, persons authorized by the Board, and other persons yet to be determined.Footnote 156 Any provision that preempts who can access restricted ACH requires reconsideration. Such provisions undermine the authority of local Aboriginal people and expressly permit access to restricted information by people without cultural authority. Consistent with the UNDRIP, the ACH Bill should prohibit access to restricted information to those holding proof of informed consent from the person or people with the cultural authority to provide that consent. Given that customary law may also restrict access to intangible ACH to certain genders, it is suggested that the Authority develop separate female and male registers and appoint a male and female registrar to oversee these registers.Footnote 157 The restricted database must also be exempt from the operation of freedom of information laws.Footnote 158 This is particularly important to protect culturally significant sites from damage and to prevent the publication of sacred ACH information without authorization from local cultural authorities. Public disclosure of information obtained via a freedom of information request may also prevent communities from obtaining intellectual property rights, such as patent protection, in relation to their intangible ACH.Footnote 159
There are multiple issues with the public database provisions. For instance, the ACH Bill requires the ACH Authority to prepare “maps containing spatial data about ACH.”Footnote 160 The objective of these maps is to identify areas of known or potential ACH valuesFootnote 161 and to provide information for use in decision making by those “engaged in land-use planning, development assessment and land management or development activities.”Footnote 162 The ACH Bill requires the Authority to make the local maps available on the public database.Footnote 163 While this approach may be intended to balance the interests of Aboriginal communities and third parties seeking access by improving transparency and making information readily available, this may make details about ACH, including information about culturally significant sites, publicly available, consequently allowing third parties to identify and locate sites without permission.Footnote 164
A major issue is that the public database may contain intangible ACH that is not currently widely known. This is because the ACH Bill requires certain entities to apply to the Authority to register this ACH on the public database if the entity wishes to obtain the exclusive right to use that ACH for commercial purposes.Footnote 165 The Bill makes it an offence for anyone to knowingly use that ACH for commercial purposes, without permission from the registered entity in the form of an agreement (a copy of which must be provided to the Authority and included in the system).Footnote 166 There are multiple issues with these provisions. First, an individual may have sole cultural responsibility for certain intangible ACH;Footnote 167 however, the ACH Bill does not expressly allow individuals to register their ACH. While the Bill allows the government to develop regulations to allow individuals to register for exclusive rights to exploit secret ACH,Footnote 168 individual knowledge holders must rely upon the government to exercise this power. The ACH Bill should provide for individuals with cultural authority to apply directly to register their intangible ACH.Footnote 169 Second, the Bill allows a range of groups to register ACH that is currently not widely known. Some of these groups comprise non-Aboriginal members—for example, Boards of Management of National Parks comprise Aboriginal people, government representatives, and a neighbor of the park—which shows a lack of support for Aboriginal ownership of ACH, a key objective of the proposed Bill.Footnote 170
Third, many communities may share the same intangible ACH. The ACH Bill allows a single entity to secure exclusive rights to exploit that ACH without the consent of, and to the exclusion of, other cultural authorities with identical or similar knowledge.Footnote 171 These entities may not share the aspiration to make the knowledge publicly available or to benefit from its commercial use. Because the knowledge loses its secrecy once registered,Footnote 172 non-consenting cultural authorities will lose the opportunity to obtain intellectual property rights in relation to that knowledge, such as patent protection.Footnote 173 The requirement that the Authority consult “relevant” local panelsFootnote 174 before registering secret ACH is insufficient to avoid this risk. It is imperative that the ACH Bill rectify the absence of mechanisms for people to challenge the registration of secret ACH or to request the removal of ACH registered contrary to their community protocols.
Fourth, an approved entity only secures exclusive economic rights in exchange for public disclosure.Footnote 175 It is not an offence for someone to use that knowledge for a non-commercial purpose, such as publication in an academic journal. The ACH Bill imposes no obligation on non-commercial users to acknowledge the database or registered knowledge holders as the information source. This allows commercial developers to come across the knowledge in an academic publication without knowing the ACH came from the database. This lack of knowledge will exempt the third party from the offence of knowingly using registered ACH for commercial purposes.Footnote 176
Finally, communities should not be required to register their information in order to obtain protection. This is inconsistent with the UNDRIP principles,Footnote 177 and there are a number of reasons why communities may choose not to register their ACH. These include a lack of trust in the ACH Authority or the technology, the perception that databases facilitate misappropriation of intangible ACH, or an inability to meet the registration requirements.Footnote 178 The framework should provide protection for all intangible ACH, registered or not. Databases such as the proposed system must be created and used with caution in the absence of legal protections for database content. While Australian copyright law offers limited protection for the way information is organized and stored, it does not extend to protecting database contents.Footnote 179 A third party can examine the contents of the database and use that information to their advantage.Footnote 180 This absence of protection for database content may result in limited participation in the system by Aboriginal communities,Footnote 181 as is the case in India where local communities have voiced concerns that the contents of People’s Biodiversity Registers will be misappropriated and exploited because of gaps in intellectual property protection.Footnote 182
Given the risks with public disclosure of secret ACH, and limits to current intellectual property law, the ACH Bill should be revised to require the registration of ACH that is not widely known on the restricted database and to specify that access to this database be limited to those holding proof of informed consent from local cultural authorities. Failure to make these revisions will result in a situation where the new information system contributes to the moving of secret ACH into the public domain and out of the control of Aboriginal people.
Improved protection, management, and conservation
The current law contains the limited objective of conserving Aboriginal objects and places.Footnote 183 It provides three avenues to advance this objective: declarations, voluntary conservation agreements, and an offence for harming an Aboriginal object or place without a permit (or reliance on another specified defense).Footnote 184 Although the ACH Bill aims to establish effective processes for conserving and managing ACH,Footnote 185 it proposes three very similar mechanisms to advance these new aims: declarations, voluntary conservation agreements, and an offence of harming ACH without a management plan. This section examines each of the proposed mechanisms to determine if they improve upon the current framework and advance the objects of the Bill.
Declarations
The current law allows anyone to ask the minister for the environment to declare an area of cultural significance to Aboriginal people.Footnote 186 The purpose of the declaration is to preserve, protect, and prevent damage to Aboriginal objects or places in that area.Footnote 187 Upon receipt of an application, the chief executive of the OEH must consult with the relevant Aboriginal people and landholders and report to the minister on the cultural significance of objects or places in that area.Footnote 188 The minister then decides whether to approve the application. The minister’s decision is final. The minister is not required to provide reasons for any refusal, and there is no right to a merits review.Footnote 189 There are currently nine declared areas.Footnote 190 It is unlawful to mine in declared areas, “except as expressly authorised by an Act of Parliament” or unless the minister tables a notice of intent to approve the mining application before both houses of Parliament.Footnote 191
Issues with the current declaration system include:
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• the Chief Executive of the OEH assesses cultural significance;
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• the minister decides whether to declare an area for special protection;
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• the minister does not need to consider any specified matters or provide reasons for any refusal; and
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• there is no right for any Aboriginal person to seek a review of the merits of the minister’s decision to refuse to declare an area (“merits review”).
The ACH Bill proposes a similar process for making declarations, but the key differences are:
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• declarations can cover objects as well as placesFootnote 192 and
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• the ACH Authority is the only entity that can make a recommendation to the minister to declare an object or place.Footnote 193
The ACH Bill retains ministerial authority over the final decision.Footnote 194 It also continues to excuse the minister from prioritizing the objectives of the Bill and from providing reasons for any refusal. There remains no right for any party to seek a merits review of the minister’s decision.Footnote 195
The proposed declaration process contains few improvements on the current framework. The extension of declarations to objects is arguably no different to the current capacity to declare an area in order to protect objects contained within it. The ACH Bill transfers administrative responsibility for making recommendations to the Authority. Vesting the central Authority with the sole right to make recommendations does not advance the role of local cultural authorities in ACH decision making. It may also cause friction between the local panels and the Authority if the Authority refuses a recommendation request. The Authority may have to refuse a request if it has insufficient funds to carry out an ACH assessment prior to making a recommendation. This is a real risk given that the Bill does not guarantee the transfer of funds equal to that expended by the OEH in preparing assessment reports. There seems to be no logical reason why the Bill cannot vest (culturally appropriate) local panels with the authority to make recommendations.
The government’s explanation for retaining ministerial control over declaration decisions is also problematic. The justification is that the minister is accountable to Parliament and the people, and declarations “provide a high level of permanent protection” that may affect private and public land.Footnote 196 This does not explain why the ACH Bill absolves the minister from accountability to Aboriginal people by not requiring the minister to prioritize the objectives of the Bill or provide written reasons for any refusal. It is possible to achieve a more sophisticated compromise of interests. One possibility is to reserve final decisions for declarations affecting private land to the minister and to reserve declarations affecting public land to the Authority. This would preserve the property rights system and address potential concerns of private property owners. In each case, the decision maker should be required to prioritize the objectives of the Bill and provide written reasons for the decision. Local panels, the Authority, private landholders, and the minister should have access to merits review for decisions contrary to their interests. The costs involved in such an action will motivate all decision makers to consider the interests of others.
Conservation agreements
Currently, a landholder (owner, manager, or lessee) can enter into a voluntary conservation agreement with the minister to protect ACH on that land.Footnote 197 The minister can make an order varying or terminating the agreement if they are of the opinion that the area is no longer needed for, or capable of, protecting ACH.Footnote 198 The minister can also make an order varying or terminating the agreement if it is incompatible with a development proposal by a public authority in circumstances where there is no practicable alternative to the proposal or the development is for an essential public purpose or purpose of special significance to the state.Footnote 199 No compensation is payable because of an order to vary or terminate an agreement.
The ACH Bill provides for voluntary ACH conservation agreements between the ACH Authority and landholders.Footnote 200 As with ACH declarations, the ACH Bill transfers administrative responsibility for entering into conservation agreements to the ACH Authority, which improves upon the current framework that vests the minister with the authority to enter into conservation agreements. However, the Bill does not guarantee the necessary funding for the Authority to carry out its functions.Footnote 201 The Bill allows the minister to make an order varying or terminating an agreement deemed incompatible with a mining or petroleum licenseFootnote 202 or development proposal by a public authority.Footnote 203 The minister is not required to consider the objectives of the Bill or provide written reasons for these decisions.Footnote 204 The Authority has no right to merits review or specified access to dispute resolution processes.Footnote 205
The continued ministerial discretion to vary or terminate an agreement deemed incompatible with the interests of a public authority or mining proponent undermines the authority of the contracting parties. Further, it poses a direct threat to ACH given the number of permits to destroy ACH that are issued to public authorities each yearFootnote 206 and the potential harm to ACH by mining activities. Despite the government’s rationalizing that mining laws offer sufficient protection for ACH,Footnote 207 these laws do not require mining proponents to negotiate activities on land subject to an ACH conservation agreement. It is unclear why the ACH Bill does not require a public authority or mining proponent to follow the same assessment pathway that others must follow (see discussion below). This would allow the Authority to negotiate the activity and/or compensation or offset arrangements for any agreed harm. This aligns with the UNDRIP principles that encourage Aboriginal consent to harm ACH and Aboriginal people’s right to “just, fair and equitable compensation” for unauthorized ACH destruction.Footnote 208 At a minimum, the Bill should:
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• require the minister to prioritize the ACH Bill’s objectives when making a decision affecting an ACH conservation agreement;
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• require the minister to reject public development proposals on land subject to an ACH conservation agreement, unless the proposal is for an essential public purpose or purpose of special significance to the state;
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• require the minister to provide reasons for varying or terminating an ACH conservation agreement; and
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• allow the Authority to seek merits review of any order to vary or terminate an ACH conservation agreement.
Assessment pathway and management plans
Currently, it is an offence to harm an Aboriginal object or place without an Aboriginal Heritage Impact Permit (AHIP) (or reliance on another defense, as discussed below).Footnote 209 The regime is subject to the criticism that it authorizes the destruction of ACH because the OEH has approved 95–97 percent of AHIP applications.Footnote 210 AHIPs also only cover objects and places, and major projects are exempt from AHIP requirements.Footnote 211 Further issues lie in the AHIP process. A proponent must apply for an AHIP if an Aboriginal object is uncovered during development or if a search of the AHIMS database prior to commencing work reveals the presence of an Aboriginal object or place on the proposed site and the work is likely to harm that object or place.Footnote 212 This “due diligence” search is not a legal requirement and does not need to occur before the proponent lodges a development application or obtains development consent.Footnote 213 However, it is a defense to the offence of harming ACH if a proponent checked the AHIMS database “and reasonably determined that no Aboriginal object would be harmed.”Footnote 214 A proponent may alternatively rely on the defense “that the act or omission constituting the alleged offence is prescribed by the regulations as a low impact act or omission.”Footnote 215
If an AHIP is required, a proponent must consult with any Aboriginal person who registers an interest in being consulted.Footnote 216 The proponent must then prepare a report that assesses the cultural significance of ACH on the site.Footnote 217 In deciding whether to grant the AHIP, the Chief Executive of the OEH “must consider” the report, the results of any consultation, and whether the consultation substantially complied with requirements set out in the National Parks and Wildlife Regulations 2019.Footnote 218 A failure to comply with the consultation requirements does not invalidate an AHIP.Footnote 219 The NPWA makes no provision for an Aboriginal person or group to seek a merits review of the OEH’s decision to permit harm.
The ACH Bill tries to redress the criticisms of the AHIP system by making it an offence to harm ACH without a management plan. The Bill provides that the ACH Authority may order the drafting of a management plan if the assessment process reveals a likelihood of harm to ACH.Footnote 220 Figure 1 captures the management plan pathway. The new pathway includes some encouraging provisions. Local panels prepare local maps that form the basis of the new due diligence check. Although the proponent still prepares the assessment report, the ACH Authority or Land and Environment Court is the source of approval for any subsequent plan. Negotiation with local people is a move away from the current consultation model.Footnote 221
Figure 1. Proposed ACH assessment pathway (courtesy of the authors).
However, there are some serious concerns. First, a proponent can secure development consent by providing a management plan with which the Local Panel does not agree. This circumvents the requirement to negotiate a plan. The ACH Bill continues to exempt major projects from the pathway requirements.Footnote 222 Major projects include mining, coal seam gas production, ports, electricity stations, and waste facilities.Footnote 223 The OEH offers a goodwill promise that the process for assessing major projects will “adopt the key features of the assessment pathway,”Footnote 224 but the Bill contains no provisions to ensure this. Finally, the ACH Bill continues to prioritize economic interests by requiring management plans and the Authority to balance the interests of proponents and Aboriginal people.Footnote 225 This conflicts with the proposed objectives of the Bill that prioritize the interests of Aboriginal people. The ACH Bill continues to prioritize the interests of proponents by vesting them with the right to appeal to the Land and Environment Court against a refusal by the Authority to approve a plan.Footnote 226 Allowing proponents to access merits review may encourage the Authority to approve plans to avoid the costs of defending such an action in court.
Biological heritage
Native plants form part of ACH. The Convention on Biological DiversityFootnote 227 and the Nagoya ProtocolFootnote 228 support the right of Indigenous people to consent to the access and use of their traditional biological resources and to share in the benefits arising from use, to the extent that this right is consistent with local property laws. Australian property law vests ownership of traditional biological resources in the landowner. Accordingly, compliance with these international instruments would only require consent from Aboriginal people if they were also the landowner. However, the UNDRIP contains no such limit regarding local property laws.
The ACH Bill does nothing to advance the UNDRIP right of Aboriginal people to consent to the access and use of their traditional biological resources and to share in the benefits arising from use.Footnote 229 The recent Biodiversity Conservation Act 2016 (NSW) also ignored these access and benefit sharing principles.Footnote 230 A pragmatic compromise that respects the rights of private landowners is to require any person seeking access to traditional biological resources from public lands, or any publicly funded genetic resource collection, to secure the consent of the ACH Authority. Such consent would allow the Authority to negotiate benefit-sharing arrangements on behalf of relevant local panels with the person seeking access to the resource.Footnote 231 Where the resource is available from public lands (or publicly funded genetic resource collections) and private landholdings, it is further worth considering a stipulation that access must be sought from the public lands or collections first. Whether failure to comply with that requirement is sanctioned by a fine would need further consideration.
Greater confidence in the regulatory system
Offence provisions
Offence provisions play an important role in achieving the objects of the regulatory regime, including the protection of ACH.Footnote 232 The wording used within offence provisions may result in breaches being difficult to establish. The maximum penalty for an offence needs to be high enough to provide an effective deterrent, again to ensure protection of ACH. Table 1 outlines the main NPWA’s ACH offences and maximum penalties and the comparable offences proposed in the ACH Bill.Footnote 233
Table 1. Current and proposed ACH offences
Offence provisions
The ACH Bill continues the main offence provisions, with proposed changes to the maximum penalties and wording of some offences. Some new offences are proposed. Currently, it is an offence to harm or desecrate an object that a person knows is an Aboriginal object.Footnote 244 The proposed provision introduces an additional mens rea element into this “knowing” offence—namely, that the person intentionally or recklessly harmed the tangible ACH (see Table 1).Footnote 245 This will make the offence more difficult for the prosecutor to establish.Footnote 246 Indeed, a previous version of the “knowing” offence in place before 2010 posed difficulties in terms of establishing intention, leading to few successful prosecutions.Footnote 247 Additionally, the proposed “knowing” offence expressly provides that an offence is only committed if the “the harm is not trivial or negligible,”Footnote 248 a term undefined by the ACH Bill. It is noted that, currently, the NPWA’s definition of “harm” (which is referred to within the offence provisions) provides that “trivial or negligible” acts or omissions do not constitute harm.Footnote 249 Nevertheless, uncertainty within the offence wording creates doubt regarding what constitutes a breach of the legislation. This affects the enforceability of the regime.
The inclusion of a requirement for the prosecutor to establish that the harm is not trivial or negligible is arguably unnecessary within the “knowing” offence that requires proof of mens rea and attracts the highest maximum penalty under the ACH Bill. Given the higher cost involved in establishing mens rea offences, the exercise of prosecutorial discretion will likely result in the proposed “knowing” offence being reserved for serious breaches. The new strict liability offence of harming tangible ACH also requires proof that “the harm is not trivial or negligible.”Footnote 250 Other strict liability environmental and planning law offences that may potentially encapsulate very minor breaches do not expressly exclude trivial harm. For instance, the offence of “picking” a threatened species of plant includes, by the definition of “pick,” to injure the plant.Footnote 251 This could involve a very minor injury, yet there is no exclusionary provision for “trivial or negligible” harm. Again, the exercise of prosecutorial discretion acts as a safeguard to prevent prosecution of “minor” or “technical” breaches. The offence provisions should be reconsidered to provide greater certainty and confidence in the regime and ensure consistency with other offences.
The ACH Bill continues the equivalent of a number of existing defenses, such as where the action was authorized under an ACH management plan, where there is compliance with a code of practice, and where acts of low environmental impact are specified in the regulations.Footnote 252 There has been criticism regarding the inclusion of particular defenses. For instance, Laurie Perry and Kylie Lingard argue that the inclusion of the defense for acts of low environmental impact is inappropriate in “an Act intended to protect ACH.”Footnote 253 The scope of the defense may require reconsideration when the regulations are drafted.
Maximum penalties
The ACH Bill creates four tiers of monetary penalties, with Tier 1 constituting the highest level.Footnote 254 Imprisonment applies to some offences (see Table 1). The maximum penalty “reflects the “public expression” by Parliament of the seriousness of the offence.”Footnote 255 It also “provides a sentencing yardstick” used “to measure the relevant features of a particular instance of an offence against a worst case” deserving of the maximum.Footnote 256 The maximum penalty also acts as a deterrent for potential offenders.Footnote 257
While the ACH Bill increases the maximum penalty for some offences, it reduces the maximum for others. For instance, the current offence of harming a declared Aboriginal placeFootnote 258 has a maximum penalty of $1.1 million for corporations and $550,000 and/or two years imprisonment for individuals.Footnote 259 The proposed offence of harming declared ACHFootnote 260 carries a maximum penalty of $660,000 for corporations and $132,000 for individuals.Footnote 261 Imprisonment does not apply. The ACH Bill also reduces the maximum penalty for an individual who intentionally or recklessly harms an Aboriginal object.Footnote 262 The ACH Bill eliminates the current doubling of the maximum penalty for individuals in “circumstances of aggravation” and reduces the maximum penalty for this offence from $550,000 and/or two years of imprisonment to $330,000 and/or one year of imprisonment. Given that the NSW Parliament increased ACH penalties in 2010,Footnote 263 after criticism of previously low maximums,Footnote 264 it is surprising that the OEH did not explain the proposed reduction to some penalties.Footnote 265 The reduced maximum penalty implies that the public now views ACH offences less seriously. This view is inconsistent with the literature and the objective of improving public respect for ACH.Footnote 266
It is also curious that the penalties in the ACH Bill are lower than the penalties prescribed for similar offences in environmental and planning laws. For instance, if a developer intentionally breaches an ACH protection condition contained within a development consent, the planning law prescribes a maximum penalty of $5 million for corporations and $1 million for individuals.Footnote 267 The maximum penalties proposed for intentionally harming ACH are much lower, despite the fact that ACH is harmed in either instance. The proposed ACH penalties require further consideration to ensure consistency with related offence regimes.
Civil enforcement
The ACH Bill continues to allow any person to commence proceedings in the Land and Environment Court to remedy or restrain a breach, or a threatened or apprehended breach, of the legislation.Footnote 268 The court has wide powers to “make such orders as it thinks fit to remedy or restrain the breach,” including suspension of an ACH management plan.Footnote 269 Additionally, the ACH Authority, or person acting with its written consent, can take civil enforcement proceedings to remedy or restrain a breach of any ACH conservation agreement or ACH management plan.Footnote 270 Again, the court has wide powers to remedy or restrain the breach.Footnote 271 Significantly, this includes the power to award damages against the landowner to which the agreement or plan applies in circumstances where the breach was intentional, reckless, or negligent.Footnote 272 The provision leaves some uncertainty regarding the damages that may be claimed—for instance, whether damages for emotional harm can be sought. Further clarity is required if the provision is to operate effectively.
Adequate funding to monitor and enforce the law
There has been criticism regarding a lack of monitoring and enforcement action under the current regime, with only a small number of prosecutions to date.Footnote 273 As Alison Packham has argued, “[o]ffences and penalties for breach are toothless without adequate monitoring and enforcement procedures.”Footnote 274 Criminal and civil enforcement are expensive, with legal costs potentially limiting the extent of enforcement action. Accordingly, it is important that adequate funding is provided to effectively monitor and enforce the new regimeFootnote 275—through both civil and criminal enforcement mechanisms—in order to achieve the ACH Bill’s objectives of establishing effective processes for conserving and managing ACH, for regulating activities that may cause harm to ACH, and for promoting respect for ACH.Footnote 276 Adequate funding is also essential to advancing the guarantee under Article 4 of the UNDRIP that “Indigenous peoples … have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”
Conclusion
The ACH Bill contains some improvements upon the current legal framework, which include new objectives that recognize Aboriginal ownership of ACH and the need for a legal framework that reflects Aboriginal authority over, and responsibility for, ACH; a definition of intangible ACH; the creation of a new information system and governance structures for that system; and the ACH Authority’s approval of management plans. These improvements appear to advance the objectives of the Bill—namely, the broader recognition of ACH values, decision making by Aboriginal people, better information management, and improved protection, management and conservation of ACH. They also appear to advance the UNDRIP principles, especially informed consent to measures that may affect ACH and participation “in decision-making in matters affecting [Aboriginal peoples] rights, through representatives chosen by themselves and in accordance with their decision-making processes and institutions.”Footnote 277
However, a closer examination highlights some serious shortcomings. The ACH Bill continues to consider tangible and intangible ACH separately and ignores ACH that may evolve and adapt in the future. The Bill does not vest ownership of all ACH in Aboriginal people. It only vests ownership of objects and ancestral remains in a central Authority. The ACH Bill places local groups at the mercy of the central Authority when it comes to the repatriation of ACH objects and remains, which ignores the preference for local ACH decision making, as expressed by Aboriginal people in consultations on the Bill, and therefore fails to advance the UNDRIP principles that require frameworks that reflect Aboriginal decision-making institutions. The ACH Bill also fails to advance its own objective of recognizing Aboriginal ownership of all ACH.
On the surface, the ACH Bill appears to advance the UNDRIP principles related to Aboriginal control over Aboriginal information by vesting responsibility for the new information management system in the centralized Authority. However, this does not reflect the preference for local ACH decision-making. The new system also requires Aboriginal people to disclose secret information on sacred sites to secure protection and to make secret knowledge publicly available in order to secure exclusive rights to exploit it. The Bill allows different groups to register the same secret knowledge, without the consent of all groups holding the same knowledge. This destroys any contrary aspirations of non-consenting groups to keep the knowledge secret.
The new governance structures and assessment pathways are particularly problematic. Although the ACH Bill purports to exclude ministerial control over the new ACH Authority, it allows the minister to appoint members, remove them at will, and make the final decision on key ACH matters. The Bill also positions local cultural authorities as advisors to the central Authority and transfers responsibility for the new information management system to the ACH Authority. This is in contrast to the expressed preference of Aboriginal people for local cultural authorities to make ACH decisions. The Bill excludes major projects, which is one of the key threats to ACH, from the assessment pathway. It also allows development proponents to seek merits reviews of ACH decisions while failing to accord Aboriginal people the same right. These elements clearly resemble the current system that prioritizes decision making by government and the interests of developers over Aboriginal people. Although the ACH Bill proposes some new offences and increases the maximum penalty for some offences, it reduces the maximum penalty for others. This valuation of ACH harm at less than that under comparable environment and planning offences impedes the ACH Bill’s aim of building widespread respect for ACH.
This article has provided some pragmatic suggestions to help the NSW government to better achieve the ACH Bill’s objectives and to advance the UNDRIP principles. Most importantly, the NSW government should submit a revised draft bill to the Aboriginal people of NSW for consultation and comment prior to presenting the final ACH Bill to Parliament. This will help ensure a legal framework that has the broad support of the people it affects the most—the NSW Aboriginal community.
