The Aboriginal community has urged the government since 2011 to make small, easy but crucial amendments to the Aboriginal Relics Act 1975 which would remove the most racist and outdated aspects of the Act. This would then allow time for new legislation acceptable to the Aboriginal community to be developed. Those amendments were:
• Remove the cut off date of 1876 from the definition of ‘Aboriginal relic’;
• Establish an Aboriginal body representative of the Aboriginal community to replace the Advisory Committee referred to in the Relics Act. The quickest method would be to have representatives of the five major established Aboriginal organisations (Aboriginal Land Council of Tasmania (ALCT), Tasmanian Aboriginal Land and Sea Council (TALSC), Tasmanian Aboriginal Centre (TAC), Flinders Island Aboriginal Association (FIAA), Cape Barren Island Aboriginal Association (CBIAA) plus two Aborigines experienced in planning, heritage or research;
• The Aboriginal representative body to have decision-making powers over Aboriginal heritage including replacing the role of the Director in making permit recommendations to the Minister.
• Increasing monetary penalties to the levels in the Historic Heritage Act.
The current Bill gives us the first and last of these suggestions, refuses the other two, and makes other changes that jeopardise rather than protect irreplaceable Tasmanian Aboriginal heritage as indicated below
The amendments made to the Bill in the Lower House do not meet the wishes of the vast majority of the Aboriginal community for a real say in our own heritage. Our objections to the Bill which compel us to seek its immediate defeat include:
1. There is no effective acknowledgement in the Bill of any primary relationship of the Aboriginal community to our own heritage. This is not achieved by the addition in the Lower House of an ‘Object and Principle’ that Aboriginal people are the primary custodians and knowledge holders of Aboriginal heritage. Whilst that addition may assist interpretation of ambiguous sections of the Act, it does not confer any legal rights and responsibilities and hence is mere window dressing.
Because most middens, petroglyphs, cave paintings etc are situated on crown lands and are regarded as part of the land, the crown claims ownership of Aboriginal history. It was expected that this law would follow the Victorian precedent by vesting ownership of the heritage (as distinct from the land on which it exists) back in Aboriginal people – see section 12 Victorian Aboriginal Heritage Act 2000: ‘As far as practicable, Aboriginal cultural heritage should be owned by Aboriginal people…’
2. The Bill does not give the Aboriginal community any effective decision-making power over our own heritage, either directly or through the proposed Aboriginal Heritage Council.
3. The Bill treats the Aboriginal community less favourably than others because it denies us access to the data base of Aboriginal heritage items (the TASI). By contrast, section 146 of the Victorian Aboriginal Heritage Act 2006 obliges the Secretary of the Register to allow an Aboriginal registered party access to the Register.
4. The definition of ‘exempt land activity’ remains unclear and the exceptions to the “restricted activity” which excuse people from requiring a permit to conceal, destroy, etc. are so broad as to make the current Aboriginal Relics Act a better protector of Aboriginal artefacts. Clause 31 (2) (f) (i) to (iv) of the Bill for example exempts from the permit requirement any land that has previously been subject to “serious ground disturbance”. This necessarily fails to recognise the potential significance of landscape rather than merely artefacts.
5. The Bill’s failure to define how Aboriginal “significance” is to be determined indicates a fundamental failure to develop all aspects of a replacement regime for Aboriginal heritage protection.
6. The definition of Aboriginal heritage in the Bill is confined to Aboriginal human remains, objects and sites and the Bill is concerned with the management of development rather than the broader issues of the recognition, ownership and management of Aboriginal heritage values (including intangible values). No amount of amending provisions of this Bill can overcome that fundamental deficiency.
7. The amendments moved in the Lower House by the Minister for Aboriginal Affairs relating to Aboriginal “communities” is mere window dressing as clause 15 (3) of the Bill already requires the Minister to ensure members of the Aboriginal Heritage Council are “broadly representative of the Tasmanian Aboriginal community and Tasmanian Aboriginal persons generally”. The real problem is that the Aboriginal community has no say in determining its own representation. That could be easily overcome by expanding the functions of the Council established under the Aboriginal Lands Act (elected by Aborigines) as well as the method of election referred to in the second dot point at the start of this paper.
8. The Aboriginal Heritage Register established under Part 11 of the Bill enables the registration of Aboriginal human remains as well as Aboriginal object. Although it is not a public register (clause 114 (2)) there is a broad range of people who may be granted access to the register by the Secretary with agreement of the Council (clause 114 (4)). The Secretary MAY – but is not compelled to – refuse to disclose information from the register on the Council’s advice that it is of “special sensitivity.” This is far from the claimed ‘custodian and knowledge holder’ role referred to in the Lower House.
9. The computer database of Aboriginal heritage information to be available on the world wide web (clause 115 (3)) is likely to provide misleading assurance to those who inspect it as to the absence of Aboriginal heritage objects.
10. Much has been made of the requirement in the Bill for mandatory management plans (clause 42). However, management plans are required only if a proposed land activity (defined to include any use or development of the land) is “high impact” or imposed by regulation or by the Minister – creating even more uncertainty. “High-impact land activity” is restricted in meaning to the matters included in the definition (clause 4) such as projects of regional significance, major infrastructure projects and certain activities under the Environmental Management and Pollution Control Act 1994. There are further very broad exemptions to the requirement for a management plan (clause 43) which have the potential to make the requirement meaningless.
11. The decision-making powers of the proposed Aboriginal Heritage Council are more apparent than real. Most destruction of Aboriginal heritage now occurs by way of permit granted by the Minister on the recommendation of the Secretary; and the Bill does not change that. That is because the Council is the sole “issuing authority” only for the “restricted activity” of scientific research, removal of registered Aboriginal objects from Tasmania or the sale of a registered Aboriginal object and has joint authority with the Minister for activity yet to be specified in the regulations (clause 4). The Minister has the sole decision-making power in relation to permits for the disturbance or excavation of land or other activity reasonably likely to involve harm to an Aboriginal object or site (clause 4). For those as for other matters, the Council has only an advisory role.
12. Aboriginal people may be prosecuted under clause 29 of the Bill for interfering with Aboriginal heritage when removing or disturbing artefacts in a midden for the purpose of passing on cultural knowledge. This would constitute an offence punishable by a fine of up to $260,000. The Aboriginal Relics Act avoids this consequence by providing a defence against prosecution for an ‘Aboriginal descendant’ in possession of an artefact (section 12 (7)).
13. The appeal provisions favour developers over Aboriginal heritage protection. Clause 41 of the Bill confers rights of appeal against a decision of the Council or the Minister; but there is no mechanism by which the Aboriginal community can appeal against the issuing of a permit. Clause 41 (2) enables appeals against decisions “made in respect of the person” only.
14. At 226 pages and with many matters left to the regulations, the Bill is overly long and complex with difficult language and sentence construction making it highly likely that the Act will be misunderstood and therefore ineffective.