Cultural heritage legislation

Contributed by Greg McIntyre and Malcolm O'Dell and current to 1 September 2005

STATE LEGISLATION:

ABORIGINAL HERITAGE ACT 1972 (WA)

The Aboriginal Heritage Act (“the AHA”) applies to:

(a) any place of importance and significance where persons of Aboriginal descent have left any natural or artificial object used in connection with their traditional cultural life in the past or present;
(b) any sacred, ritual or ceremonial site of importance and special significance to persons of Aboriginal descent;
(c) any place of historical, anthropological, archaeological or ethnographic interest of importance and significance to the cultural heritage of the State;
(d) objects of sacred, ritual or ceremonial significance or connected with the traditional cultural life of Aboriginal people; and
(e) any place where such objects are stored.

The duty of the State Minister for Aboriginal Affairs under the AHA is to ensure that Aboriginal sites and cultural material are recorded and their relative importance evaluated so that resources available for their preservation and protection may be coordinated and made effective (s.10). He or she is obliged to have regard to the recommendations of the Aboriginal Cultural Materials Committee (ACMC) and the Registrar of Aboriginal Sites, but is not bound to give effect to them (s.11A).

The ACMC is made up of persons appointed because of special knowledge, experience or responsibility related to the evaluation of the recognition and evaluation of the cultural significance of matters coming before them, together with a person appointed by the Director of the WA Museum, a person responsible to the Minister, and an authorized land officer under the Land Administration Act 1997 (WA).

The Registrar of Aboriginal Sites is the principal executive officer of the Cultural Materials Committee (s.37). The Registrar’s function is to maintain, in the manner and form determined by the Minister, a register of all protected areas, all Aboriginal cultural material, and all other places and objects to which the Act applies, whether within the State or elsewhere (s.38).

The AHA does not restrict the access to places or objects by persons of Aboriginal descent who have a customary interest in a place or an object of traditional or current importance: s.8.

Any person knowing of the existence of any place or thing to which the AHA applies is obliged to report its existence to the Department of Aboriginal Sites or a police officer. The right to excavate or remove anything from an Aboriginal site is reserved to the ACMC and it is an offence to excavate, destroy, damage, conceal or in any way alter an Aboriginal site or any object under an Aboriginal site, except with the authorization of the ACMC or the Minister.

Application to damage sites

Under s.17 of the AHA it is an offence to:

(a) excavate, destroy, damage, conceal or in any way alter any Aboriginal site; or
(b) alter, damage, remove, destroy, conceal or deal with in a manner not sanctioned by relevant custom, or assume the possession, custody or control of, any object on or under any Aboriginal site unless acting under the authority of the Registrar under s.16 or the consent of the Minister under s.18.

Section 18 of the AHA allows the owner of any land (which includes a Crown lessee and the holder of a mining tenement or petroleum licence) to give notice that it requires the land for a purpose which would be likely to cause a breach of s.17. The ACMC must form an opinion as to whether there is an Aboriginal site on the land, evaluate its significance and importance and make a recommendation to the Minister as to whether consent should be given to the proposed use of the land. The Minister must either consent to the use, subject to any specified conditions, or decline to consent.

An aggrieved owner has a right to apply for a review of a decision under s.18 by the State Administrative Tribunal. The Aboriginal custodians of the site concerned have no similar right.

A person breaching the provisions is liable to summary conviction with a penalty for the first offence of $500 or imprisonment for 3 months, or both. For subsequent offences the penalty increases to $2,000 or 12 months’ imprisonment, or both. For continuing offences the penalty is $100 per day.

Further conviction may result in the forfeiture of a right, title or interest in the land if the offence was committed knowingly for the purposes of gain and with the intent to defeat the purposes of the Act.

Protected Areas

The ACMC may recommend to the Minister that an Aboriginal site of outstanding importance be declared by the Government to be a protected area. The Minister must then give written notice of the recommendation to any interested person. If that person is aggrieved by the declaration of an Aboriginal site as a protected area he or she may object in writing to the Minister. The Minister may direct the ACMC to take the objector’s interest into account. The Minister may take into account the report of the ACMC on the objection and other information and, if it appears that it is in the general interests of the community, may recommend to the Governor that the declaration of the protected area be varied or revoked.

A site may be declared a protected area whether or not it is on land which is in private ownership or possession or reserved for any public purpose. The holder of any previous interest is entitled to reasonable compensation to the extent to which his interest is prejudicially affected.

Temporary protected areas may also be declared by the Governor for archaeological or other investigations. The order has effect for 6 months, and may be revoked or varied at any time. Protected areas are vested in the Minister on behalf of the Crown.

Once a site has been declared a protected area there may be restrictions or conditions imposed on:

• persons entering the area;
• the use of vehicles, explosives, tools and equipment in the area;
• damage to the physical environment; and
• entry of livestock.

A person holding an interest in such land may also agree with the Minister that the land be held subject to a covenant in favour of the Minister, prohibiting, or imposing conditions on, any development or use of that land which would have a deleterious effect on the preservation of the site (s.27).

Objects

The AHA places restrictions on the sale, exchange, removal from the State or willful damage of Aboriginal cultural material unless the person involved is a person of Aboriginal descent acting in accordance with Aboriginal custom, or unless expressly authorised by the Sites Department.

Provision is similarly made for the Sites Department to compulsorily acquire cultural material which would be of general interest to the community.

Litigation Under the AHA

Prosecutions under the AHA cannot be brought by a private citizen, and must be brought by the Department of Indigenous Affairs on behalf of the State.

There have been few successful prosecutions brought by the Department of Indigenous Affairs (and its predecessors) under s.18 of the AHA. However, decisions by the Minister to consent to a use under s.18 have been the subject of much litigation. Between 1989 and 1992 an Aboriginal group, led by the Fringedwellers of the Swan Valley (Inc) ran a campaign to prevent the development of the Old Swan Brewery in Perth. It included camping at the site and taking legal proceedings to challenge decisions of the State Minister to grant consent to the development under s.18 of the AHA. One result of this challenge was a High Court decision confirming that the WA State Government is bound by the AHA: Bropho v State of WA & WADC [1990] HCA 24; (1990) 171 CLR 1.

Litigation under the AHA has also been mounted in relation to a gas pipeline and a housing development at Bennett Brook in the Swan Valley, a development of the Rottnest Island Lodge (a former Aboriginal prison where Aboriginal remains had been buried): Van Leeuwin v Dallhold Investments (1990) 71 LGPR 348, Supreme Court WA, (1989) LGPR SC WA Lib No 8542 SCWA Lib No 7811 (30.8.89, Ipp J.) SCWA Lib No 8609 (20.11.90, Ipp J); and the development of an iron ore mine at Yakabindie in the Eastern Goldfields: Ngalia Heritage Research Council v Minister for Aboriginal Affairs and Dominion Mining (1991) Supreme Court of WA Lib No 9147 and Wonyabong v Minister Aboriginal Affairs & Dominion Mining (1991-1992) unreported, Supreme Court of WA (Anderson J).

FEDERAL LEGISLATION:

THE ABORIGINAL AND TORRES STRAIT ISLANDER HERITAGE PROTECTION ACT 1986 (Cth)

The ATSIHP Act provides (in s.10) that an application to the Federal Minister for Aboriginal Affairs can be made orally or in writing by or on behalf of an Aboriginal or a group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration. Where the Minister is satisfied, having received specified information regarding the area sought to be protected:

• that the area is a significant Aboriginal area; and
• that it is under threat of injury or desecration, he or she may make a declaration in relation to the protection and preservation of the area from injury or desecration.

Section 9 of the ATSIHP Act makes provision for an emergency declaration for up to 30 days (which may be extended to 60 days) in relation to “a significant Aboriginal area… that is under serious and immediate threat of injury or desecration”.

The provisions of the Act which enable a declaration can only be used as a last resort after all other heritage protection mechanisms at State or Territory level have been exhausted. A declaration must be revoked if the Minister becomes satisfied that the relevant State law provides effective protection.

The Act also provides for a local Aboriginal community to enter an Aboriginal cultural heritage agreement with the owner of Aboriginal cultural property (including land) covering such things as the preservation, maintenance, exhibition, sale and use of the property.

Litigation under the Federal Act

In Bropho v Tickner & Bluegate Nominees Pty Ltd [1993] FCA 25; (1993) 40 FCR 165 Wilcox J held that the state did not provide effective protection of an Aboriginal site and that the Commonwealth Minister was thus entitled to make a declaration under s.10 of the ATSIHP Act.

There has been considerable litigation under the Act in relation to the development of a bridge to Hindmarsh Island in South Australia. Nyarrinjerri women opposed the development on the basis that it would destroy a secret women’s site. An application was made to the Minister for Aboriginal Affairs under the ATSIHP Act to protect the site. The Minister, Robert Tickner, granted a declaration after obtaining a report, as required under the Act, from a female anthropologist. Because he believed it would be a breach of Aboriginal law for him (being a man) to read the report, he acted on advice from a female staff member as to the content of the report. In Norvill v Chapman [1995] FCAFC 1726; (1995) 133 ALR 226, the Minister’s decision was challenged. The court found that the Minister for Aboriginal Affairs was obliged to personally read material, which Aboriginal customary law dictated should be revealed only to women, in order to exercise his discretion under the Act. The court found that his strategy of delegating his task to a female staffer who reported to him was not in compliance with the Act.