Bill threatens 1967 referendum win
By Jennifer Thompson
A bill currently before federal parliament, coming on top of the Coalition's Wik bill, threatens to further remove indigenous people's rights to protect their heritage, according to the Aboriginal and Torres Strait Islander Commission. The new law will transfer responsibility for Aboriginal heritage protection back to state governments, reversing some of the gains of the referendum held 31 years ago.
According to ATSIC's Gatjil Djerrkura, the Aboriginal and Torres Strait Islander Heritage Protection bill, 1998, will reinforce the Coalition's drive to remove indigenous people's rights to negotiate "to ensure protection of significant spiritual and cultural areas".
The Native Title Act, threatened by the Wik bill, and the Aboriginal and Torres Strait Islander Protection Act, 1984, to be replaced by the new law, are the only legislative protection for Aboriginal heritage, Djerrkura said.
The 1967 referendum gave the gave the federal government constitutional responsibility for the protection of indigenous people's rights and interests, and ensuring state and territory governments met these standards, ATSIC points out. The government also has an international legal obligation to protect indigenous people's heritage.
Jenny Munro, chairperson of the Metropolitan Land Council in Sydney, told Â鶹´«Ã½ Weekly the illusion that state governments looked after the interests of Aboriginal people was laid to rest in the late '60s and early '70s.
"It has been proved conclusively that the state governments were the agents of our dispossession and our death. And they want to give that right back to them. We will have no protection again", she said.
ATSIC says the new law will restrict access to the commonwealth act, will accredit most state and territory heritage protection laws without requiring significant improvements, and impose a new definition of the "national interest", which fundamentally reduces the commonwealth's involvement in indigenous heritage protection.
The bill is now before the Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. Labor MPs and Queensland Democrat Senator John Woodley are a minority on the committee.
Woodley told Â鶹´«Ã½ Weekly that the Democrats support a strong federal law, and oppose handing the federal responsibility for Aboriginal heritage protection to the states.
In October 1995, the Labor government asked Justice Elizabeth Evatt to examine the terms and operations of the Aboriginal and Torres Strait Islander Protection Act. Her report recommended improvements to the processes of the act and the strengthening of indigenous heritage protection by commonwealth, state and territory governments. Evatt urged the federal government to set and monitor uniform standards for state and territory indigenous heritage protection laws.
ATSIC endorsed her recommendations to protect culturally sensitive information, improve indigenous involvement in protection decisions, establish agreed national standards for heritage protection laws and put in place effective mechanisms for early consideration of heritage issues in the states and territories.
The existence of the federal heritage protection law meant that the National Aboriginal History and Heritage Council (NAHHC) received assistance from the Australian Heritage Commission in its struggle to save Australian Hall, site of the 1938 Day of Mourning conference.
"They put the building straight on the National Estate", Munro, who is also the NAHHC chairperson, told Â鶹´«Ã½ Weekly. "But the legislation as it was written made it very difficult for us to have that site included, because there is no consideration of Aboriginal people having a connection to buildings."
Evatt's report pointed to the need to take into account how Aboriginal people are "living, have lived and have adapted", said Munro. "She provided a very good overview of the legislation as it currently existed, and provided a very good list of recommendations as to how it could be improved."
In December 1996, Aboriginal affairs minister John Herron announced that the Aboriginal and Torres Strait Islander Protection Act would be overhauled "to prevent another Hindmarsh Island saga". He said that the government would "ensure that indigenous culture and beliefs are properly protected", adding that heritage protection could contribute to Aboriginal reconciliation.
In March 1997, the Senate referred the issues surrounding the heritage protection act and the Evatt review to the joint parliamentary committee. The committee's report, described by ATSIC as heartening, was tabled in parliament on April 2, the same day Herron introduced the new bill. The bill bore little resemblance to Evatt's recommendations.
ATSIC believes that if the current bill is changed to reflect the findings of the parliamentary committee and the Evatt recommendations, it would "go a long way to addressing the major threshold concerns of ATSIC with the bill".
As it stands, the new law will mean a significant decrease in protection for indigenous heritage. ATSIC's cultural heritage commissioner, Preston Thomas, told the parliamentary committee that the bill sets the hurdle for accreditation at such a low level that most state and territory heritage protection regimes would achieve accreditation despite clear and well-documented deficiencies.
Thomas said the notion of national interest fundamentally changes the nature of federal involvement in indigenous heritage protection by shifting attention from indigenous heritage values to national considerations.
Central Land Council director Tracker Tilmouth told the February issue of Land Rights News that any national interest test for protection declarations would be an impossible hurdle. "Probably only Uluru would fit the criteria. That would leave everything else at risk."
Tilmouth said that the example of Junction Waterhole near Alice Springs had shown the need for protection at a national level. The Junction Waterhole/Werlatye Atherre dam is still the only declaration under the Heritage Protection Act in existence in Australia. Sacred sites at Junction Waterhole would have been under water if the NT government had its way. Aboriginal Affairs minister Robert Tickner issued a 20-year protection declaration in May 1992.
"The NT government clearly wasn't interested in protecting the sites, because it had issued a certificate under the [NT] Aboriginal Sacred Sites Protection Act authorising the dam", Tilmouth explained.
The joint parliamentary committee is due to release its report on the bill on May 25 or 26. The Democrats are seeking an extension of time to allow more consultation on the bill.