LEGAL UPDATES ABORIGINAL CULTURAL HERITAGE

ABORIGINAL CULTURAL
HERITAGE LAW:
A LONG ROAD TO REFORM
By Norman Laing and Kellyanne Stanford*

boriginal culture is an intrinsic

part of the shared Australian
heritage and identity. For
Aboriginal people in particular,
cultural heritage is a fundamental
component of an individuals and
communitys collective cultural identity
and wellbeing. A strong culture that
is well protected and respected is
inherently important to Aboriginal people
it is a source of pride and provides a
sense of belonging, and it embodies a
physical and spiritual connection to land
and water, or what Aboriginal people
often refer to as Country.
In NSW, Aboriginal cultural heritage
is primarily managed and protected
by the National Parks and Wildlife Act
1974 (NSW) (NPW Act). The current
legislation does not define Aboriginal
cultural heritage, rather it refers to the
need to conserve Aboriginal objects,
places, and features of significance
to Aboriginal people and to foster
appreciation, understanding and
enjoyment of this heritage (s 2A).
Aboriginal objects are defined as any
material relating to the Aboriginal
habitation of NSW, including Aboriginal
ancestral remains. The legislation also
provides that all Aboriginal objects are
the property of the Crown (with limited
exceptions). The NSW government
can dispose of Aboriginal objects that
are Crown property by transferring to
Aboriginal owners or Aboriginal people
(s 85A) with such transference effectively
ending all protection provided by the
NPW Act.

Background to NSW Aboriginal

cultural heritage legislation
The settlement of Australia has impacted
upon Aboriginal heritage and, in some
circumstances, Aboriginal peoples
ability to maintain a physical connection
to Country. As the first settled colony,
NSW is a vastly developed State, and the
impacts have been significant.
It was not until 1939 that the NSW
government first considered legislation
for protection of Aboriginal heritage; but
it was 1969 before legislative protection

88

LSJ

AUGUST 2015

Norman Laing is an
Acting Commissioner
of the NSW Land &
Environment Court.
Kellyanne Stanford is
a law student. Both are
partners of Waratah
Partners Aboriginal
Corporation.

have resulted in provisions regarding

Aboriginal heritage.

NSW has the oldest legislation

that manages Aboriginal
cultural heritage.
Despite multiple reviews and
decades of calls for change,
Aboriginal cultural heritage
remains in the States flora and
fauna legislation.
NSW stands alone as the last
jurisdiction in Australia not
to have enacted separate
Aboriginal cultural heritage
legislation.
of Aboriginal heritage began with
amendments to the then National Parks
and Wildlife Act 1967 (NSW). In fact,
NSW was the second state in Australia to
legislate for this type of protection when
the NPW Act commenced in 1970, thus
providing for protection of Aboriginal
relics and sites.
The 1969 amendments also resulted
in the creation of an Advisory
Committee to the Minister for the
Environment, which consisted primarily
of anthropologists, museums, mining
companies and government staff. The
Committee did not have Aboriginal
representation until 1980. In 1973, the
Advisory Committee received funding
to conduct a five-year survey to record
Aboriginal heritage in NSW, resulting
in the creation of a sites register that
contained information about the state
of Aboriginal heritage in NSW the first
and only comprehensive survey of this
kind in NSW.
In 1974, a number of amendments to
the NPW Act 1967 were consolidated
into the NPW Act 1974 (the Act currently
in force). One of these amendments
provided for Ministerial declaration
of Aboriginal places (s 84), primarily
in order to protect places of special
significance where relics may not
exist. Other significant amendments
to the NPW Act throughout the years

The most recent 2010 amendments

strengthened provisions for the
protection of Aboriginal objects and
Aboriginal places by introducing new
offences, providing limited defences
against prosecution, increasing penalties
and creating clear and flexible permits
(Aboriginal Heritage Impact Permits or
AHIPs) for those proposing to disturb
Aboriginal objects and places.
The NPW Act also provides for the
reservation and management of lands
of particular cultural significance
(s 30E), state conservation areas (s 30G)
or Aboriginal Areas (s 30K). Conservation
agreements can also be made to protect
natural and cultural values between
landowners and the Minister for the
Environment (ss 69AKA) with the
subject area being registered on the title
of the land.

Other relevant laws

Over time, new laws were created and
amended in NSW that interacted in
quite significant ways with the NPW Act
regarding Aboriginal heritage, including:
Heritage Act NSW 1977 Provides
protection to places of Aboriginal
heritage significance that are of
State heritage significance by listing
them on the State Heritage Register.
Consultation is undertaken with
Aboriginal groups for places listed
specifically for Aboriginal significance.
Environmental Planning and
Assessment Act 1979 As the key
piece of legislation for land use
planning and development in NSW,
the Act requires new development
projects to consider impacts to the
environment. Heritage is considered to
be a part of the environment. Formal
consideration of Aboriginal heritage
must occur as part of the development
approval process.
Aboriginal Land Rights Act 1983
Established a system of Local
Aboriginal Land Councils (LALCs)
across NSW that can acquire and deal

LEGAL UPDATES ABORIGINAL CULTURAL HERITAGE

in land whilst also providing for LALCs

to protect and promote awareness of
Aboriginal culture and heritage;
Crown Lands Act 1989 Outlines
processes and principles for using and
managing Crown land including the
use of covenants over Crown land to
protect environmental and heritage
values before the land is sold or
transferred; and
Native Title Act 1994 Enables the
exclusive possession of land, as well as
cultural rights and interests, through
native title as well as the provision for
negotiated agreements (Indigenous
Land Use Agreements).
Whilst the above statutes include
Aboriginal heritage considerations,
for over 40 years the identification,
protection, regulation and management
of Aboriginal heritage in NSW has
occurred primarily through the NPW
Act a piece of legislation that is, for all
intents and purposes, primarily for the
protection, promotion and regulation of
our States flora and fauna.

Calls for Aboriginal cultural heritage

legislative reform
Since the 1980s, a number of significant
NSW government reviews of Aboriginal
heritage laws have recommended that
the system governing Aboriginal heritage
be reformed.
Multiple reviews of the Aboriginal
heritage system have resulted in a
number of consistent themes including:
removing the management of
Aboriginal heritage from the NPW Act;
establishing a separate Aboriginal
heritage law for NSW;
redefining objects to a culturally
appropriate definition of heritage;
shifting from consultation to the
control, and governance of, Aboriginal
heritage through some form of
Aboriginal controlled commission
or decision-making body; and
importantly
formally recognising the role
of traditional owners in the
management of their heritage.
The Aboriginal people of NSW have
continually requested a stronger role
in decision making and management
of Aboriginal heritage. The current
legislation provides no decision-making
role for Aboriginal people regarding
impacts to Aboriginal heritage, however it
does provide Aboriginal people with a role
in the community consultation that must
be undertaken before an AHIP is issued.

Practitioners in heritage, property

development and mining, as well
as environmental advocates, have
recommended creation of a stand-alone
legislation that: more appropriately and
effectively deals with consideration and
management of Aboriginal heritage,
streamlines processes and interactions
with other statutes and simplifies the
consultation process with Aboriginal
communities.
Consultation with Aboriginal individuals
and groups is not an easy task, but
is essential for those parties seeking
an AHIP for their proposed activities.
Parties seeking an AHIP are continually
confronted with a level of uncertainty
about who, within the Aboriginal
community, is able to legally and
legitimately speak for Country.
The development of the Aboriginal
Land Rights Act 1983 (ALRA) partly
addressed the request of Aboriginal
people regarding management of their
land and protection of their heritage.
The 2001 amendments to the ALRA
provided a mechanism for LALCs to
submit proposals that lands of cultural
significance be reserved under the NPW
Act (s 52(c)). Further 2006 amendments
provided for the promotion of culture
and heritage awareness (s 52 (4)(b)).
There are no enabling provisions in the
ALRA Act though, to enable this protect
and promote function to occur and
the NSW government has only received
a relatively small number of proposals
for reservation of lands of cultural
significance under the NPW Act.
Separate legislation together with an
Aboriginal heritage commission, or
equivalent, has yet to be established
despite the recommendations of at least
seven formal inquiries and reports to
the NSW government. The protection
and regulation of Aboriginal heritage
continues to be entrenched within the
same legislation that is primarily for the
protection of flora and fauna.

The current Aboriginal cultural

heritage legislative reform process
In 2010, the then Labor government
committed to the development of
stand-alone legislation for Aboriginal
cultural heritage and established the first
Aboriginal Culture and Heritage Reform
Working Party (Working Party).
However, in October 2011 the NSW
Liberal government announced a revised
law reform process. The previous Working
Party was disbanded and a new Working
Party was constituted in May 2012.

In its final report, the Working

Party made 23 recommendations that
sought a fair and equitable balanced
model for all stakeholders involved
in the process. There were six key
recommendations: a new administrative
structure; processes to consider
Aboriginal cultural heritage early in the
planning processes; local decisions by
local people (who speak for Country);
streamlined conservation and regulation
processes; and funding for Aboriginal
cultural heritage conservation outcomes.
Government responded to the
recommendations in 2013 and released
a model for stand-alone legislation
that would deliver a more culturally
appropriate, efficient and effective
process for heritage protection.
The proposed model took into
consideration the stand-alone Aboriginal
heritage legislation of other jurisdictions
as well as recommendations arising
from the NSW governments review
of the ALRA and the reform of the
Environmental Planning Act 1979.

Where to now?
Despite decades of bipartisan consensus
to create stand-alone Aboriginal
cultural heritage legislation, the reform
process continues to develop at a slow
rate. There have been no government
announcements about next steps
since the consultation process for the
proposed model was completed in
March 2014
As at June 2015 some 76 years since
the NSW government commenced
discussions about the Aboriginal
cultural legislation there still remains
a legislative void in the recognition
and practical implementation of
various governments commitments
and, importantly, Aboriginal peoples
aspirations for the self governance of
their heritage.
The National Parks and Wildlife Act is the
oldest legislation in Australia managing
Aboriginal cultural heritage. Although it
has been amended multiple times and
delivers some positive results, it still
does not deliver the outcomes expected
and needed for the people of NSW.
The Aboriginal cultural heritage reform
process in NSW has been a long journey,
especially for the first peoples of what is
Australias first State.
*Norman Laing is a decendent of the Dunghutti
people. Kellyanne Stanford is a descendant of
the Yuin people.

AUGUST 2015

LSJ

89