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Minister for Environment , Heritage and the Arts Peter Garrett. |
NIT FORUMS: Caring for culture still under threat
ISSUE 190 - 12 Nov 2009
ISSUE 190, November 12, 2009: The Minister for Environment, Arts and Heritage Peter Garrett has proposed changes to cultural heritage legislation. This is a good thing, writes MARK HOLDEN*, but more still needs to be done.
In 1996, Justice Elizabeth Evatt released a report, regarding the status of federal measures to protect Indigenous cultural heritage.
In it, she criticised the provisions for lacking means of recognising or integrating Indigenous culture, such as making secret Indigenous knowledge public and allowing people to be wilfully blind to the destruction or sale of sacred areas or objects.
The best example of this was the Hindmarsh Island incident from 1993 to 2001, where the sacred area of the Ngarrindjeri women was denounced by a Royal Commission as a hoax. This caused great despair over federal measures for heritage protection.
Under the current federal system, should there be an activity that is an immediate threat to an area or object, an Indigenous Australian could apply to the federal government for protection.
The government would then determine if the area or object is of significant value to Aboriginal people. The government could make an emergency prevention order, but to make a long-term order they would need to consult with the state government.
This is to make sure no one is stepping on any toes and that state government would have the most appropriate law to protect the land or object. This has been a problem for the following reasons.
There is nothing to protect secret Indigenous knowledge, no Indigenous say is provided for the prevention order, the test for "significant Aboriginal area" is very hard to achieve, the federal/state meetings take forever and someone could destroy the area and say they "didn't know it was protected".
In the end, there is a 93 percent failure rate for federal protection, and of the five orders for long-term protection, the federal court overturned two.
Thirteen years after Justice Evatt's report, Minister for Environment, Arts and Heritage Peter Garrett has now proposed a number of amendments to Indigenous heritage protection and discussions over these amendments were held in August 2009.
His aim is to firstly cut the red tape with the federal and state jurisdiction. Secondly, he wants to repair the problems Indigenous applicants have, as mentioned in the Evatt report.
This comes as a blessing.
The federal government is starting to live up to its formal endorsement of the United Nations Declaration on the Rights of Indigenous Peoples.
I mention this in particular, because a very significant amount of this declaration deals with the implementation of fair protection for our traditional owners, like Article 11:
1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with Indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
The new proposals come with a lot of additions and alterations to the current system. The definition for a 'traditional area' and 'traditional object' has been given a broader interpretation.
There is now only a requirement for a function or part of a function under traditional laws and customs and that the object or area is protected under traditional laws and customs.
But it still does not expressly say whether it includes the natural resources on the land.
Furthermore, there is still the danger that the interpretation of 'traditional' may leave out Indigenous cultures that may have been modified, due to colonisation, displacement and assimilation.
The state accreditation system will give states sole control over applications for protection, but only if they adopt a number of standards given by the federal government. This removes the jurisdiction fight and makes the decisions more certain.
The standards for protection are beneficial to the Traditional Owners. Some states may not have culturally sensitive laws, such as NSW, which has no laws for reporting Indigenous remains.
Also developers will need to seek out the Traditional Owners and consult with them confidentially.
However, they need only consult first with an Indigenous representative body, such as a Native Title body.
Also, there is no establishment of an impartial Indigenous body to register Traditional Owners to be consulted. Should there be no accreditation, then the same federal/state procedure applies.
Under the federal system of protection, the criteria for protection - both long-term and short-term - proposed has been broadened, making it easier for Indigenous applicants.
The required test is your connection to the land or object and how it fulfils your traditions and customs.
Again though, the Minister making the decision must consider the impact to the community.
Furthermore, grants of emergency protection will only give applicants 48 hours to write up their applications - shorter compared to the 96 hour recommendation in the Evatt Report.
If you were to make a claim for protection under the federal system, you would need to fill out a much more detailed application form.
This will require information about yourself, your area or object you wish to protect, the impending threat and what is the traditional value to you and/or your tribal group.
This is obviously problematic for illiterate people, let alone those from a non-English speaking background.
There should therefore be powers for the Minister to appoint appropriate field officers to take the information down and take responsibility for it, or else nominate a support person for the applicant if one is available.
Alternatively, more resources should be provided to legally recognised Indigenous representative bodies, as they are of better assistance.
Parties would also need to conference with each other. This would reduce costs and prevent further conflict between parties.
The applicants would need to promise to conference in good faith i.e. turn up for the conference and give the other side a fair say.
It is strange though that there is no requirement for the government or the developers to make the same promise. Some of these latter two bodies just do not even turn up to talk.
Furthermore, the conferencing model is too westernised and therefore it is too formal, too slow, too expensive and no Indigenous party feels secure.
It needs to integrate Indigenous culture to give fairness and clarity to both sides. Most especially needed is a bi-cultural co-facilitation model.
The new proposal to protect culturally sensitive information is an excellent strategy to protect public disclosure to uninitiated people. The parties can talk in confidence about their land or objects, without it being leaked to inappropriate parties.
Some really great news in this proposal is that the wilful blindness defence to heritage destruction will be removed. Under the current federal legislation, someone can say while destroying heritage, "I'm sorry I didn't know" and if there was no reasonable way they could have found out.
Many prosecutions failed because of this defence as it was a by-product of the lack of education of some developers. Furthermore, the amendments proposed a system of compensation and repair to damaged areas or objects payable.
However there is no provision to say who is owed the compensation if there is no traditional owner applying. Even though it cannot heal the pain caused for the loss, it can go towards maintaining the next generation of Indigenous people.
This new proposed system for heritage protection is more culturally sensitive and effective, but it still does not change the inherent flaw.
It is still a system handled by the Minister for Environment, Heritage and the Arts and the Traditional Owners still have no say in how the decision should be made and how the system should be operated.
Indigenous heritage protection is something best left to Indigenous bodies. This is reflected in the Evatt report, where Justice Evatt recommended an impartial Indigenous heritage body.
The UN Declaration on the Rights of Indigenous People also recommended this and most of its articles require the greater provision of self-determination of Indigenous people.
It is now up to the government to hear the words of lawyers, politicians, scientists, activists, Elders and businesspeople.
Now that Mr Rudd has formally endorsed the UN Declaration on the Rights of Indigenous People, his government has a stronger duty to recognise our rights and to resolve these issues our way.
To cap off, it should be remembered that the culture, customs and knowledge of our ancestors, both Indigenous and non-Indigenous, should be remembered and preserved.
As an Aboriginal Elder once said, "in order to understand and protect our future, we must understand and protect our past".
forum@nit.com.au
*Mark Holden is a lawyer working at the University of Technology, Sydney's Jumbunna Indigenous House of Learning.
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