Aboriginal and Torres Strait Islander Heritage Protection Act 1984

The Act was established as a "final resort" to heritage protection where state and territory protections were unsuccessful. As Senator Ryan stated when introducing the bill, "Where a State or Territory has no law capable of providing effective protection, or no action is being taken to give effect to that law, the Commonwealth will act in appropriate cases." The Act defines "Aboriginal tradition" as: The Federal Court of Australia has expanded the definition to require "a degree of antiquity to the traditions" whilst respecting intergenerational transmission may incorporate some variation. An area is considered injured or desecrated if it is used or treated in a manner inconsistent with Aboriginal traditions, including if a person's presence there would be inconsistent. The threat of injury or desecration must be specific; a declaration cannot be made against acts already taken, or potential acts in the future. Aboriginal human remains can be claimed as objects of significance however the Act has a limited definition of which Aboriginal human remains can be considered of particular significance to Aboriginal traditions. == Key Cases ==

The Wamba Wamba case (1989) An emergency declaration for area protection was made in 1989 on a development site for a golf course and country club. Before development, in 1986, archeological evidence found the area was likely to have skeletal remains dating back 30,000 years. Aboriginal custodians requested reburial in the same site and the movement of the club house and bowling green to an alternative area. Hindmarsh island (Kumarangk) Cases (1995) The area of Kumarangk or Hindmarsh island in 1995 was subject to a protection declaration which grew to national attention sparking the Hindmarsh Island bridge controversy. The site was not granted protection. Other issues around the proceedings went to federal court twice. Two cases in 1998 and another in 2001 attempted to dispute, or recover from, the findings but were dismissed. These cases offered a broader definition of ‘traditional’ and outlined that the minister, in making their decision, must consider all relevant material. This relevant material includes "the views of people who would be affected adversely by a declaration and any relevant matters, such as the financial effects of a declaration." However the protection of Aboriginal heritage is "to be given substantial weight by the Minister in exercising his or her discretion". The effect of these cases deterred Indigenous people from making applications due to confidentiality and publicity concerns., The Minister did not declare the site protected as he did not believe it met the threshold of significance. and ‘unreasonableness. The minister refused to make a declaration which led to the court case. The Anderson siblings, both  senior elders of the Numbahjing Clan of the  Bundjalung Nation, were required to show the minister "acted perversely or had no logical basis for his decision" or lack thereof. They did not meet the threshold and the ministers’ decision was upheld and therefore the application was dismissed. Destruction of Juukan Gorge In July 2020, caves of great cultural and archaeological significance in Juukan Gorge, known as the only inland site in Australia to show signs of continuous human occupation for over 46,000 years, including through the last ice age, was deliberately destroyed by mining company Rio Tinto in May 2020. The destruction occurred legally under Western Australian legislation, the Aboriginal Heritage Act 1972. After a great outcry, a bipartisan parliamentary inquiry was announced. On 9 December 2020, the inquiry published its interim report, entitled Never Again. The report "highlights the disparity in power between Indigenous peoples and industry in the protection of Indigenous heritage, and the serious failings of legislation designed to protect Indigenous heritage and promote Native Title". Seven recommendations were made, including urging the federal government to urgently review the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. . (Dates) Other Significant cases Dates v Minister for the Environment, Heritage and the Arts cases regarding the Alum or Bulahdelah Mountain, 2010. Robert Tickner v Robert Bropho cases regarding the Swan Brewery, 1993. == Reviews ==

The Evatt Review Between October 1995 to June 1996, Elizabeth Evatt AC independently reviewed the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. This review was requested after the Kumarangk (Hindmarsh Island) cases. The report produced 58 recommendations to amend the legislation which have continued to be used as suggested amendments to the Act decades later. The motivation for review was multi-factorial: • Aboriginal People did not feel in control in administering the Act. There was no process to field or negotiate further questions on cultural heritage and no commitment to ensuring Aboriginal people had access to, or management of, the sites after declarations were made. • The administration of the minerals industry became difficult to manage. Whilst no mining project had been stopped by the Act, industry authorities with approved projects under state legislation were delayed by commonwealth applications which led to financial strains. • The application process was deemed ineffective due to "delays, litigation and cost for the applicants and other affected parties". The delays often resulted in the destruction and injury of areas and objects. Of those four, two were overturned by the High Court and one was revoked. • States and territories struggled to negotiate with the commonwealth law due to a resistance to commonwealth intervention. • The ministers’ decision was discretionary which concerned Indigenous applicants. • In requiring the disclosure of information on the significance of the heritage site or item, cultural obligations were being breached. Indigenous customary law and practices of hierarchies of knowledge concerning age, gender and kinship connection includes restricted access to certain knowledge. Requiring applicants to disclose restricted information to claim significance meant Indigenous cultural obligations were disregarded. Despite criticism, the review noted existing positive outcomes of the Act. The Act had instigated state, Indigenous and developer negotiations which at times produced protections without making declarations. The policy would standardise the purposes, definitions and terms of heritage legislation. The co-ordinating body would be an adequately funded and fully resourced agency with a majority of its employees identifying as Indigenous. • State, Territory and Commonwealth heritage protection laws should minimise or eradicate the requirement of Indigenous applicants to reveal restricted information. • Provisions should be made to allow Indigenous peoples’ access to their respective sites and objects. • Indigenous people, especially the recommended agency, should be the judges of the significance of a site or item, and deciders of the magnitude of the threat to areas and objects. The decision of significance and threat would be treated as separate from protection. • Decisions made by the recommended agency would be binding on the minister. If an agreement is met, it must be registered and breaches would give rise to civil liabilities. time frames of protection should be extended, and greater consultation on lifting declarations should be made. • Emergency applications require immediate action. • The Acts’ processes should require seeking consultation with interested parties and publicising the details of the process. • Public records of heritage objects and repatriation processes should be produced. 2009 Discussion Paper In August 2009, the Federal Minister for the Environment, Heritage and the Arts, Peter Garrett proposed major reforms to the Act in discussion paper ‘Indigenous Heritage Law Reform’ because "The... Act has not proven to be an effective means of protecting traditional areas and objects". As stated in the paper, "93% of approximately 320 valid applications received since the Act commenced in 1984 have not resulted in declarations." but these amendments were not adopted. The proposed amendments introduced new definitions, stating an object or area must have "a use or function" or "is the subject of a narrative" The proposed changes also included a new system of accreditation for state or territory heritage protection laws . Where heritage protection laws in states and territories were deemed effective by the federal minister, the laws would become ‘accredited’. The effect would be applications be referred back to respective states or territories to be considered by their accredited legislation, and emergency declarations to the federal minister could not be made. were able to make a declaration under the Act, where previously any Aboriginal or Torres Strait Islander person could. The discussion paper states, "Where there are no Indigenous people who clearly have a statutory responsibility for the land…any Indigenous person could apply for protection." Another proposals introduced a new offence if "secret sacred objects" or "personal remains" were displayed publicly. The exception to this offence was if the display was permitted by Aboriginal and/or Torres Islander people accordance with laws and customs, or if the remains were "voluntarily donated under Commonwealth, state or territory laws or possibly if the object was imported into Australia for exhibition by a public museum or gallery". == Amendments ==

From 1984, the Minister for Aboriginal and Torres Strait Islander Affairs was responsible for administering the Act and was "assisted by the Aboriginal and Torres Strait Islander Commission." However, independent of legislative amendments, from December 1998, the "responsibility was then transferred to the Minister for the Environment who administers the Act through Environment Australia." The bill introduced requirements for applicants to prove that protection was in the ‘national interest’ and that applicants had exhausted all state or territory remedies. No Indigenous Heritage Advisory Board was instituted. and ‘national interest’ was not defined in the bill. Since 1987, Victoria had state specific provisions within the Act that served as their heritage protection legislation which the Victorian government requested to repeal in 2005 as it limited the ability for the state to create Victorian specific heritage protection legislation. Senator Siewert was concerned that the state legislation would be insufficient, stating "I am concerned that handing over responsibility to Victoria effectively means that the Commonwealth is failing to meet its heritage obligations to the Indigenous peoples of Victoria." This concern arose out of believed "lack of appropriate and adequate consultation that was involved in the drafting of the Victorian legislation." sections were added to the Act to stop declarations being made on objects that were under the Protection of Movable Cultural Heritage Act 1986,, like items owned by museums. This was added as overseas institutions, like museums, would be reluctant to loan material without the assurance of the objects return and this amendment would "help to secure the framework for future international cultural exchanges of benefit to Australia". This bill was passed, however concerns around the effectiveness of the Act were raised as "Indigenous communities would not consider the ability to view behind glass in a museum what they see as stolen items as any substitute for the loss of this heritage". Senator Siewart also stated "there is increasing international activity around the return of cultural artefacts…more must be done to pursue the return of these precious and sacred artefacts from overseas" and this amendment would reduce repatriation efforts. == Examples of Declared Protected Areas ==

Junction Waterhole (Niltye/Tnyere-Akerte), Alice Springs A declaration spanning 20 years was placed on Junction Waterhole in 1992. The declaration was contentious due to existing flooding concerns and town water supply. These Dreaming tracks "traverses the continent from Port Augusta to the North Australian coast". Boobera Lagoon, Moree, NSW. Boobera Lagoon is protected under a permanent protection declaration as of 1 July 2000. The area, the lagoon and the land bordering it, is of great significance to Kamilaroi people and was at risk of environmental damage by power boats and water skiing. Earlier efforts to protect the site were its being catalogued by the National Parks and Wildlife Service in 1977, The date of commencement of the declaration was two years after deciding the site was under threat of injury or desecration as "relevant State and Local Government agencies to establish an alternative water-skiing site". However negative international attention regarding the lagoon meant the date of commencement remained 1 July 2001. The decision to delay and attempted postponement has been recorded as showing "loss for the Aboriginal community and the wider Australian community..[as] the interests of recreational users have been preferred to the human right of Indigenous people to have their culture protected" and "local Aboriginal people [were] prevented from fulfilling their role as custodians of the area" due to the delays. == See also ==