NEW SOUTH WALES: The O’Farrell government says it is committed to fulfilling a 30-year-old Labor promise – to enact stand alone Aboriginal culture and heritage legislation within its term.
Currently, the main law governing Aboriginal culture and heritage protection is the state Flora and Fauna law – the National Parks and Wildlife Act.
Under this act, the majority of Aboriginal objects are considered the “property of the Crown”.
That means the state Office of Environment and Heritage (OEH) has the power to approve the damage or destruction of Aboriginal culture and heritage and has the main responsibility to protect it.
A stand alone Aboriginal heritage act was first promised 30 years ago by Labor MP Frank Walker on the introduction of the state land rights legislation.
In Mr Walker’s second reading of the bill he said “there is one element missing from what could be considered a land rights bill – that is the provision for the protection of sacred sites and sites of significance.
“Land and the law effected by legislation is highly complex, because of its religious and spiritual nature.
“It is my intention to seek the assistance of the new Aboriginal councils that will be formed under the proposed legislation before introducing an Aboriginal Heritage Commission Bill for the protection and ownership of sacred and significant sites.”
Those laws were never introduced, making NSW the only state in Australia without separate legislation for the protection of Aboriginal culture and heritage.
There has been a push from peak bodies like the New South Wales Aboriginal Land Council (NSWALC)* and NTSCORP, amongst others, to put in place stand alone legislation.
The NSWALC has a continuing campaign called “Not Flora and Fauna”.
This month, environment minister Robyn Parker was questioned by Greens MLA David Shoebridge in an estimates hearing about whether the “government is still committed to delivering a stand-alone Aboriginal Heritage Act”.
“Absolutely,” Ms Parker told estimates.
“I think that is the outcome we will have. We have engaged in a long consultation program that is coming to an end and I expect a report coming to me very shortly on the outcomes of those recommendations.”
Ms Parker said she would await the outcome of the report and did not commit to a timeframe.
She said it was one of her goals to have it in the term of the current government.
Aboriginal affairs minister Victor Dominello also threw his support behind stand alone legislation in a separate estimates hearing.
“… Aboriginal heritage is, in my view, repugnantly contained within the flora and fauna legislation – the national parks legislation, which everyone in this room thinks is a disgrace,” Mr Dominello said.
“It is just insane that in 2012 important things of cultural heritage for Aboriginal people is contained in flora and fauna legislation.
“We have a working group because we as a government realise the repugnant nature of this and we have made a commitment. In honouring our commitment we have established a working group so that we have a stand alone piece of legislation.
“We will consider the recommendations of the working group at the end of the year and, hopefully, some further determinations in March next year.”
Labor established a working party in 2010 to consider stand alone legislation.
That followed commitment from both sides of government for reform of the National Parks and Wildlife Act.
NSWALC was represented on that working party, which met 3 times until February 2011, but the process stalled following the election of the O’Farrell government.
Later that year, the newly-formed OEH released advice outlining new arrangements, including a revised reform process, new consultations, a new working party and a new terms of reference.
NSWALC and NTSCORP were both left out of the working party, despite writing to Premier Barry O’Farrell about concerns over the stalled process prior to the release of the advice.
Some of the key concerns outlined by NSWALC and NTSCORP following the release of the advice included the hasty commencement of the reform process, announced before the establishment of the working party, the exclusion of both peak bodies in the process, the failure to consult with key stakeholders and the revised and weakened “objectives” of the reform.
NSWALC has had meetings with Minister Parker regarding the reform process since then and has developed a submission in collaboration with NTSCORP.
Minister Parker told estimates she is expecting the report of the working party in a matter of weeks.
“They will give me the report shortly and I am trying to work out the exact timeline…. I am expecting it shortly. Given the way in which this has occurred so far is that we have had extensive consultation, we have a report that will make recommendations.
“I will make that public and make a recommendation to Cabinet and we will see where we go from there.”
Mr Shoebridge welcomed the government’s commitment in a media release, but said it was important Aboriginal people had control over their own culture and heritage.
“The Greens welcome Minister Parkers’ commitment to remove the administration of Aboriginal cultural heritage from the National Parks and Wildlife Act,” Mr Shoebridge said in a statement.
“It should never have been there in the first place.
“The real question now is whether the government will retain its support for Aboriginal Knowledge Keepers and Traditional Owners to have final decision making power over activities which will impact on Aboriginal cultural heritage.
“Minister Parker also revealed in Budget Estimates that within weeks the government will receive a report with recommendations regarding the management and administration of Aboriginal cultural heritage.”
“One of the key issues to be resolved is whether a stand-alone body will be established to administer Aboriginal cultural heritage, with Knowledge Keepers the primary decision-makers, or if the government will repeat the mistakes of the past by keeping control firmly in the hands of the state.
“The Greens are calling on the government to give recognition and respect to Aboriginal people’s rights as custodians of Aboriginal culture heritage and country.
“The best way to do this is to return decision-making power over Aboriginal cultural heritage to Aboriginal people.”
*Tracker is published by NSWALC.