Native Title Report 2000: Chapter 4: Indigenous heritage

Chapter 4: Indigenous heritage

In the early years
of settlement Mrs Elizabeth Macarthur wrote that she found her new country
pleasing to the eye:

The greater part of the country is like an English park, and
the trees give it the appearance of a wilderness or shrubbery, commonly
attached to the habitations of people of fortune. Aboriginal people had
created these nourishing terrains through their knowledge of the country,
their firestick farming, their organisation of sanctuaries, and their
own rituals of well-being. Their lands were their 'fortunes', and their
fortunes were their own - in Law and in practice. Elizabeth Macarthur
was not wrong. She was, indeed, seeing a place which was the home of people
of fortune.(1)

The recognition
of native title by the High Court in 1992 was a significant development
in the legal apparatus for protecting Indigenous culture. Under the concept
of native title it is possible that sacred and significant sites and objects
might be protected, not within the historical category of Aboriginal heritage,
but as matters valued in contemporary Indigenous culture with current
significance to a people whose culture is ongoing. In addition, under
native title such protection could be provided, not as an act of beneficence
by government, but as a matter of legal right.

This type of legal
development was remarked upon by Special Rapporteur Madame Erica-Irene
Daes in her recent study entitled Indigenous People and Their Relationship
to Land.(2 )

It must be acknowledged that an important evolution is taking
place. The fact that dozens of countries have adopted constitutional and
legislative measures recognizing in various degrees the legal rights of
indigenous peoples to their lands and resources is powerful evidence that
such legal measures are consistent with domestic legal systems and that
they are needed. The ongoing development of indigenous peoples' rights
to lands, territories and resources must be seen as an opportunity for
both indigenous peoples and States to contribute to the progressive development
of human rights standards. It must be acknowledged that legal concepts
and rights and, indeed, indigenous peoples themselves cannot be frozen
in time. Indigenous communities and societies change and evolve like all
other societies.(3)

Such an approach
to Indigenous culture, as an holistic evolving concept, is in stark contrast
to the social Darwinist approach underlying past heritage legislation
(often contained in state parks and wildlife legislation) in which Aboriginal
society was depicted as a relic of a dying or extinct civilisation. The
recognition of native title is an opportunity to re-frame the protection
of Indigenous heritage within the broader framework of a human right to
enjoy one's culture. However, developments within the common law of native
title, and amendments to the Native Title Act 1993 (NTA) have placed heritage
protection outside of this broader frame. The bundle of rights approach
to native title has meant that contemporary practices of protecting and
respecting significant or sacred sites are considered insufficiently connected
to the actual practices of the original inhabitants to be included in
a native title determination. In addition, the amendments to the NTA have
significantly reduced the protection available to Indigenous heritage
and the right of native title holders to participate in decisions about
protecting their cultural heritage. This chapter will examine these developments.

As a result of the
inadequate protection provided through native title, State and Commonwealth
heritage legislation remains the most significant form of heritage protection
available to Indigenous people. One source of protection is through the
registration of places that hold current significance to Indigenous people
on the Register of the National Estate established under the Australian
Heritage Commission Act 1975 (Cth). Indigenous heritage is just one component
of this Act whose main criteria for inclusion on the Register is the 'national
significance' of a place. The Act controls actions by the federal government
that may adversely affect a registered place. However, private owners
or state or local governments are not controlled by this Act. The Act
is also limited in the extent to which it provides a framework for the
participation of Indigenous people in the decisions under the Act.

A further source
of Indigenous heritage protection through Commonwealth legislation is
the Environment Protection and Biodiversity Conservation Act 1999 (Cth)
(the EPBCA) which protects properties of world heritage value. This Act
improves upon and replaces the protection provided by the World Heritage
Properties Conservation Act 1983 (Cth). These acts are the Commonwealth's
domestic implementation of the Convention for the Protection of the World's
Cultural and Natural Heritage. The EPBCA provides automatic protection
to world heritage properties by ensuring that an environmental impact
assessment is undertaken for actions that are likely to have a significant
impact on the world heritage values of the property. While this protection
is invaluable, the process for establishing the world heritage value of
a property is lengthy and onerous. Further, Indigenous people have very
little control over the decisions taken under the Act.

The Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Commonwealth
Heritage Act) differs from the above Commonwealth acts in that it is dedicated
solely to the protection of Indigenous heritage. It was introduced as
an interim measure during the protracted and unresolved struggle for uniform
national land rights legislation. It is now a matter of history that national
land rights legislation did not eventuate and the Commonwealth Heritage
Act has remained the primary source of Indigenous heritage protection
at the federal level. This Act was the first recognition of the need to
protect Indigenous cultural heritage for reasons other than scientific
or archaeological research. It was the first recognition of the right
of Indigenous people to preserve, protect, access and manage cultural
material. This recognition formed part of a general move away from policies
of assimilation towards self-determination. As a product of the early
stages of this thinking, the Act is a small step forward from the paternalistic
idea of heritage protection as a matter of preserving the relics of a
by-gone era.

Yet a review of this
legislation by Dr Elizabeth Evatt in 1996 indicated that the legislation
was inadequate in the protection that it provided as well as the extent
to which it involved Indigenous People in the decisions that were made
under the Act. In 1998 the Aboriginal and Torres Strait Islander Heritage
Bill was introduced into Parliament. The Bill was debated and amended
in the Senate in November 1999 along the lines of the recommendations
of the Evatt Report. The Senate's amendments have been rejected in the
House of Representatives. This chapter will discuss the relevant Commonwealth,
State and Territory heritage legislation and the proposed amendments to
the Commonwealth heritage legislation in the light of international human
rights standards. In order to understand the level of importance placed
on Indigenous culture at an international level it is helpful to review
developments in the international discourse concerning heritage protection.

International discourse on
Indigenous heritage protection

The international
human rights standards relevant to the protection of Indigenous heritage
can be broadly identified as follows:

• the right to self-determination,
• the right to protect Indigenous
  heritage, including the right to manifest, practice, develop and teach
  Indigenous heritage,
• the right of Indigenous
  people to participate in matters effecting their heritage, . the right
  to equality of treatment,
• the right to freedom of
  thought, conscience and religion.

An annotated inventory
of Conventions and General Recommendations relevant to the protection
of Indigenous heritage is set out at Appendix 5.

Human Rights Committee

The urgent need for
resolution, in accordance with human rights principles, of the status
of proposed amendments to the Commonwealth heritage legislation was noted
by the Human Rights Committee (4) (HRC) in its Concluding
Observations in 2000. In relation to Australia's compliance with the right
to self-determination under Article 1 of the International Covenant on
Civil and Political Rights ( ICCPR) the HRC stated at paragraph 9 of its
Concluding Observations:

With respect to Article 1
of the Covenant, the Committee takes note of the explanation given by
the delegation that rather than the term "self-determination" the Government
of the State party prefers terms such as "self-management" and "self-empowerment"
to express domestically the principle of indigenous peoples exercising
meaningful control over their affairs. The Committee is concerned that
sufficient action has not been taken in that regard.

The State party
should take the necessary steps in order to secure for the indigenous
inhabitants a stronger role in decision-making over their traditional
lands and natural resources (Article 1, para 2).(5)

In relation to Australia's
compliance with its obligation to protect minority cultures under Article
27 of ICCPR, the HRC stated at paragraph 11 of its Concluding Observations
that:

The Committee expresses its
concern that securing continuation and sustainability of traditional
forms of economy of indigenous minorities (hunting, fishing and gathering),
and protection of sites of religious or cultural significance for such
minorities, that must be protected under Article 27, are not always
a major factor in determining land use.

The Committee recommends
that in the finalization of the pending Bill intended to replace the
Aboriginal and Torres Strait Islander Heritage Protection Act (1984),
the State party should give sufficient weight to the above values.

The Committee's observations
and recommendations were a response to the priority given by successive
Australian governments to non-Indigenous land use over the human rights
of Indigenous people. Article 27 of the ICCPR requires that Indigenous
people not be denied the enjoyment of their culture and that the 'continuation
and sustainability of traditional forms of economy of indigenous minorities'
is assured. The decision in July 2000, by the Minister for the Environment
and Heritage, Senator Hill, to defer a protection order over Boobera Lagoon
for a further two years in order to allow water skiers to find an alternative
recreational site (6) struck the Committee as a particularly
worrying illustration of land management practices which prioritise non-Indigenous
culture over Indigenous culture.

During oral submissions
to the Human Rights Committee, Mr Lahlah, the committee member from Mauritius,
commented on the lack of judicial remedies for breaches of the Covenant.
He stated the following on the government's decision in relation to Boobera
Lagoon:

As I understand, the water skiing is going to continue until
alternative sites are found. I would have thought that since this is a
Covenant right and water skiing is not as such a Covenant right, then
maybe the reverse should have happened. I'm not taking this as a light
matter. It may very well be that water skiing is related to property rights
guaranteed under the constitution. It may very well be. I do not know.
But in this case, the court would have had the opportunity of deciding
on these priorities, cultural rights of certain minorities guaranteed
under the Covenant and property rights not guaranteed under the Covenant
but guaranteed elsewhere.(7)

Protection of Indigenous
heritage is a fundamental component of the instruments and obligations
relating to the international human rights of Indigenous people. The importance
of heritage protection, as one aspect of the obligations to Indigenous
people to land is recognised by human rights bodies.

Report of the seminar on the
draft principles and guidelines for the protection of the heritage of
indigenous people by Chairperson-Rapporteur Erica-Irene Daes (8)

The report on the
protection of the heritage of Indigenous people by Erica-Irene Daes is
the most comprehensive statement from an international organisation of
the appropriate standards for the protection of Indigenous peoples' heritage.
The principles and guidelines are widely endorsed by Indigenous peoples
and reflect the position of the Working Group on Indigenous Populations,
the most expert group on Indigenous issues in the United Nations system.
The principles were elaborated in accordance with the Working Group's
mandate to develop standards regarding the rights of Indigenous peoples.

I would draw particular
attention to the following principles:

• The effective protection
  of the heritage of the indigenous people of the world benefits all humanity.
  Its diversity is essential to the adaptability, sustainability and creativity
  of the human species as a whole.(9)
• To be effective, the protection
  of indigenous peoples' heritage should be based broadly on the principle
  of self-determination, which includes the right of indigenous peoples
  to maintain and develop their own cultures and knowledge systems, and
  forms of social organisation.(10)
• Indigenous peoples should
  be the source, the guardians and the interpreters of their heritage,
  whether created in the past, or developed by them in the future.(11)
• Indigenous peoples ownership
  and custody of their heritage should be collective, permanent and inalienable,
  or as prescribed by the customs, rules and practices of each people.(12)
• The discovery, use and
  teaching of indigenous peoples' heritage are inextricably connected
  with the traditional lands and territories of each people. Control over
  traditional territories and resources is essential to the continued
  transmission of indigenous peoples' heritage to future generations,
  and its full protection.(13)

Underlying these
five principles in relation to Indigenous heritage are the human rights
of self-determination under Article 1 of ICCPR and the protection of minority
cultures under Article 27 of ICCPR. The Report also makes important recommendations
concerning the protection of Indigenous heritage through national legislation:(14)

23. National laws for the
protection of indigenous peoples' heritage should:

(a) be adopted following
consultations with the peoples concerned, in particular the traditional
owners and teachers of religious, sacred and spiritual knowledge,
and wherever possible should have the informed consent of the peoples
concerned;

(b) guarantee that indigenous
peoples can obtain prompt, effective and affordable judicial or administrative
action in their own languages to prevent, punish and obtain full restitution
and just compensation for the acquisition, documentation or use of
their heritage without proper authorisation of the traditional owners;

(c) Deny to any person
or corporation the right to obtain patent, copyright or other legal
protection for any element of an indigenous peoples' heritage without
adequate docu-mentation of the free and informed consent of the traditional
owners to an arrangement for the sharing of ownership, control, use
and benefits;

(d) Ensure labelling, correct
attribution and legal protection of indigenous peoples' artistic,
literary and cultural works whenever they are offered for public display
or sale.

24. In the event of a dispute
over the custody or use of any element of an indigenous peoples' heritage,
judicial and administrative bodies should be guided by the advice of
indigenous elders who are recognised by the indigenous communities or
peoples concerned as having specific knowledge of traditional laws.

25. Government should take
immediate steps, in cooperation with the indigenous peoples concerned,
to identify sacred and ceremonial sites, including burial sites, healing
places, and traditional places of teaching, and to protect such places
from unauthorised entry or use and from deterioration.

The Daes Report on the protection
of Indigenous heritage contains the following fundamental principles to
guide governments in their formulation of heritage legislation:

• informed consent by Indigenous
  people to the legislation
• maintenance of Indigenous
  control over their culture in accordance with the right of self-determination
  and
• restitution and compensation
  for the appropriation of their culture.

The Report offers a timely
guide to the government in its proposed overhaul of existing heritage
legislation in Australia.

Protecting Indigenous heritage
in Australia

It was recognised as early
as 1984 that the Commonwealth Heritage Act was inadequate to protect Indigenous
culture, in particular, because it failed to locate heritage protection
within the context of Indigenous peoples' fundamental relationship with
their lands. Nevertheless, the limitations of the Act were justified on
the basis that it was proposed as a temporary measure, pending the forthcoming
introduction of national land rights legislation. It was expected that
more appropriate and comprehensive heritage protection would be achieved
through the enactment of such legislation.

In 2001, the NTA is the only
national legislation that has since been enacted to protect Indigenous
people's relationship to land. It is ironic then, that when Indigenous
peoples have complained about the inadequacies of the NTA to protect Indigenous
heritage, the response has been that heritage protection should be achieved
through specifically targeted legislation, rather than through a comprehensive
land rights protection scheme.

Protection of Indigenous heritage
through native title

The promise of native title
was that the protection of Indigenous culture would be rescued from the
swings and roundabouts of successive governments in giving or withdrawing
their support to heritage legislation and subsequent amendments. Native
title is a legal right comparable to any other interest in land. Native
title has its origins in the culture and traditions of Indigenous people.
That is what gives the title its content. It follows that Indigenous heritage,
as a subset of Indigenous culture, is included in the concept of native
title. and capable of being protected in the same way that other common
law titles to land are protected.

Moreover, positioning heritage
protection with the laws that protect Indigenous title to land better
reflects the centrality of land to the vitality and survival of Indigenous
heritage and culture. The principles in relation to Indigenous heritage
identified in the Daes report support this positioning. A recent United
Nations report prepared by the Special Rapporteur Miguel Alfonso Martinez,
entitled Study on treaties, agreements and other constructive arrangements
between States and indigenous populations,(15)
places similar weight on the relationship of Indigenous people with their
land.

Owing to their special
relationship, spiritual and material, with their lands, the Special Rapporteur
believes that very little or no progress can be made in this regard without
tackling, solving and redressing - in a way acceptable to the indigenous
peoples concerned - the question of their uninterrupted dispossession
of this unique resource, vital to their lives and survival.(16)

Common law and legislative
developments in relation to native title have not held true to the promise
held out by the recognition of native title. At common law, native title
has been determined to be inherently weak and inferior, making it vulnerable
to extinguishment. Extinguishment has also been effected through amendments
to the future act provisions of the NTA. The armoury of procedural rights
under the original NTA (such as the right to negotiate) that protected
native title from destruction or impairment as a result of commercial
or government developments was similarly eroded by the amendments to the
NTA. Furthermore, there has not yet been any definitive recognition that
native title may include a right to "maintain, protect and prevent the
misuse of cultural knowledge"(17) or a right to
control cultural property.

The common law protection
of Indigenous heritage

The common law approach to
native title applications is to delineate two issues for determination.
First, the applicants must prove that they continue to acknowledge the
laws and customs based on the traditions of the clan group. If the claimants'
connection to the traditions and customs of their forebears is established,
then the court may determine whether the grant of tenures over the history
of the claimed land since sovereignty has resulted in the extinguishment
of native title.

The emergence of an approach
to native title that characterises native title as a bundle of rights
has the capacity to affect the outcome of these two lines of inquiry.
In Chapters 2 and 3, I discuss the effect of the 'bundle of rights' conceptualisation
of native title in relation to the question of extinguishment. Of particular
note is the majority decision of Beaumont and von Doussa JJ in the Muriuwung
Gajerrong case (18) which, if upheld by the High
Court,(19) will confirm the total and permanent
extinguishment of native title where land is, or has been, subject to:

• enclosed or improved pastoral
  leases (20) in Western Australia (and in jurisdictions
  that have similar legislative provisions in relation to pastoral ; and
• mining leases granted in
  Western Australia under the Mining Act 1978 (WA) and Regulations (21)
  (and in jurisdictions that have similar legislative provisions in relation
  to mining leases).

The bundle of rights approach
also limits what the courts will recognise as native title rights. In
particular, it diminishes the value that the courts place on contemporary
Indigenous culture. It fails to recognise that the practices which establish
the applicants' connection to their culture are part of a broader system
of rights of which particular practices are an emanation. Where only traditional
practices are recognised as forming the content of native title and not
the system of laws and traditions underlying those practices, then little
flexibility is permitted in determining whether contemporary practices
that seek to protect Indigenous heritage should be recognised and protected
as part of native title.

The extent to which a bundle
of rights approach limits the recognition of contemporary Aboriginal practices
concerned with heritage protection is illustrated by the decision in the
Yorta Yorta case.(22) Recognition of native title
is dependant upon proof that Indigenous people have maintained their traditional
connection to land. In Yorta Yorta the trial judge interpreted the evidence
of traditional connection very restrictively. The written records of an
early squatter, Edward Curr, were heavily relied on to determine the traditional
practices which constitute the content of native title. Of traditional
burial practices, Curr wrote:

The Bangarang mode
of burial had nothing remarkable about it. The dead were rolled up on
their opossum-rugs, the knees being drawn up to the neck with strings,
when the corpse was interred in a sitting posture, or on its side, generally
in a sand-hill, in which a grave about four feet deep had been excavated.
A sheet of bark was then placed over the corpse, the sand filled in, and
a pile of logs about seven feet long and two feet high was raised over
all. Round about the tomb it was usual to make a path, and not unfrequently
a spear, surmounted by a plume of emu feathers, stuck at the head of the
mound, marked the spot where rested the remains of the departed. Women
were interred with less ceremony.(23)

Having established from Curr's
writings some of the individual practices of the original inhabitants,
the court noted that these same practices are not observed today in the
same form.

In relation to the claim for
recognition of the right to carry out burial ceremonies on the claim area,
a similar logic was applied:

There can be no question
about the importance of the returning of the remains to the appropriate
country but the modern practices associated with their reburial are not
part of the traditional laws and customs handed down from the original
inhabitants.(24)

The court further rejected
the claim that the contemporary practice of protecting sites of significance,
such as mounds, middens and scarred trees, should be recognised as a native
title right. His honour reasoned that these sites were of no significance
to the original inhabitants 'other than for their utilitarian value, nor
[did] traditional law or custom require them to be preserved'.(25)

The trial judge thus refused
to recognise traditional laws and customs unless they replicated the observed
practices of the original inhabitants. This restriction of what is regarded
as 'traditional connection' prevents native title from protecting practices
that, although differing from the practices of the original inhabitants,
develop from those practices and seek to preserve and protect the past.
This restriction on what may be recognised as native title means that
native title protection cannot extend to heritage protection.

Protection of Indigenous heritage
in the NTA

The capacity of the NTA to
protect Indigenous culture is limited in three ways.

• The extinguishment of native
  title through the confirmation provisions in Division 2B of Part 2 of
  the amended NTA;
• The denial and erosion of
  procedural rights by the amendments to the NTA. The amendments to the
  NTA have substantially reduced the procedural rights available to native
  title holders in relation to a broad range of future acts now covered
  by Division 3 of Part 2; and
• The reliance in the NTA
  upon inadequate protection provided in Commonwealth, State and Territory
  heritage legislation. Where the protection of Indigenous heritage and
  native title coincide under the NTA the protection of Indigenous heritage
  is diverted to inadequate Commonwealth, State and Territory Indigenous
  heritage legislation.

Limitations resulting from
extinguishment of native title

The total and permanent extinguishment
of native title through the confirmation provisions of the amended NTA
(Division 2B of Part 2) means that a significant area of the traditional
lands of Indigenous people cannot be protected under the concept of native
title.

Section 47B provides that in
certain circumstances native title claimants may apply for a determination
on land where native title would otherwise have been extinguished because
of previous Crown grants. The section will only apply where the area is
presently vacant Crown land and is not subject, for example, to a reservation
for a public or particular purpose or subject to a resumption order.(26)
In addition, native title claimants must occupy the land at the time of
application.(27) Section 47B thus provides some
relief from the otherwise inevitable destruction of Indigenous land ownership
and culture as a result of the extinguishment of native title.

The Committee on the Elimination
of the all Forms of Racial Discrimination (the CERD Committee) considered
the amendments to the NTA in March 1999 and again in March 2000 and heard
the government's argument that the confirmation provisions merely reflect
the position of native title at common law. This justification for the
provisions was unacceptable to the Committee. As the Australian Country
Rapporteur noted:

Since.European settlement.the
native land rights of Aboriginal peoples have been systematically undermined.[terra
nullius] completely discounted the cultural value of the Aborigines'
traditional and complex land distribution system.

As defined by the High Court
in the Mabo decision, native title is a vulnerable property right, it
is inferior to sovereign title, which has the power to extinguish native
title without notice, consent or compensation. .

Because much of the Government's
argument is that its actions have been justified because they meet the
standard of the common law, it is important to note that the common
law itself is racially discriminatory.(28)

The CERD Committee recognises
that as a result of both the unique nature of Indigenous property rights,
linked as they are to cultural and spiritual practices, and the historical
disadvantage and dispossession experienced by Indigenous people native
title must be recognised and protected as part of Australia's commitment
to equality.

In its recent consideration
of Canada's periodic report to it, the Human Rights Committee recommended
that 'the practice of extinguishment of inherent aboriginal rights be
abandoned as incompatible with Article1 of the Covenant, [the right of
self-determination]'.(29)

The extinguishment of native
title worked by the amendments to the NTA was strongly opposed by Indigenous
people. Their capacity to protect immovable cultural property, traditional
knowledge such as medical knowledge and genetic material, and cultural
materials on land is profoundly impaired by any extinguishment of native
title.

The denial and reduction
of procedural rights by the amendments to the NTA (30)

Under the original NTA future
development on native title land was governed by the freehold test. Native
title holders had the same protection as 'ordinary titleholders' holding
freehold title in relation to developments on their land.(31)
In addition, native title holders had a right to negotiate in relation
to mining proposals and compulsory acquisitions for the benefit of third
parties.

Under the amended NTA the procedural
protection provided by the freehold test has been greatly reduced. The
freehold test now applies to onshore (32) legislative
acts (33) and to onshore non-legislative acts (34)
except those provisions specifically enumerated. The freehold test has
been greatly reduced as a result of the amendments to the NTA, and in
particular by on-shore non-legislative acts discussed below.

The amendments to the NTA deny
and reduce the procedural rights available to native title holders in
relation to a broad range of future commercial or government developments
on native title land. The relevant provisions are found in Division 3
of Part 2 of the NTA.

Denial of procedural rights

The amended NTA provides no
procedural rights to native title holders in relation to a range of future
primary production activities and acts giving effect to the renewal, re-grant,
re-making or extension of certain leases, licences, permits or authorities.
The effect of this denial of procedural rights is extensive, covering
the agricultural land of Australia where native title continues to exist.
In these instances, the protection of Indigenous heritage is left exclusively
to Commonwealth, State and Territory legislative regimes of Indigenous
heritage protection. The relevant sections of the NTA are:

• s 24GB: primary production
  activity (35) or associated activity (other than
  forest operations, horticultural activity or aquacultural activity or,
  where a non-exclusive pastoral lease is to be used agricultural purposes
  (36) ), on non-exclusive agricultural and non-exclusive
  pastoral leases granted on or before 23 December 1996;
• s 24IC: the renewal, re-grant,
  re-making or extension of leases, licences, permits or authorities granted
  on or before 23 December 1996, or a renewal re-grant etc under s 24IC
  or a lease etc created under s 24GB, 24GD, 24GE or 24HA.

Reduction of procedural
rights

In relation to certain other
government or commercial activities that may impair native title, the
amendments to the NTA have reduced the procedural rights of native title
holders from those available to holders of freehold title (the freehold
test) to a mere right to be notified and a right to comment.

The procedural rights of native
title holders are reduced to a right to comment in relation to the following
acts:

• s 24GB: the exceptions
  (forest operations, horticultural activity or aquacultural activity
  or native title holders, where a non-exclusive pastoral lease is to
  be used agricultural purposes) to the total denial of procedural rights
  of native title holders where primary production activity or associated
  activity occur on non-exclusive agricultural and non-exclusive pastoral
  leases granted on or before 23 December 1996 attract, for native title
  holders, a right to be notified and a right to comment;(37)
• s 24GD: grazing on, or
  taking water from, areas adjoining or near to freehold estates, non-exclusive
  agricultural and non-exclusive pastoral leases granted on or before
  23 December 1996 attract, for native title holders, a right to be notified
  and a right to comment;(38)
• s 24GE: cutting and removing
  timber and extracting and removing sand, gravel rocks, soil or other
  resources from non-exclusive agricultural and non-exclusive pastoral
  leases granted on or before 23 December 1996 attract, for native title
  holders, a right to be notified and a right to comment;(39)
  
• s 24HA: the management
  and regulation (including through the grant of leases, licences and
  permits) of surface and subterranean water, living aquatic resources
  and airspace attract, for native title holders, a right to be notified
  and a right to comment;(40)
• s 24IB and s 24ID: the
  grant of freehold estate or the right of exclusive possession over land
  or waters pursuant to a right created by an act on or before 23 December
  1996 attract, for native title holders, a right to be notified and a
  right to comment;(41)
• s 24JA and s 24JB: the
  construction or establishment of public works on land reserved, proclaimed,
  dedicated etc for a particular purpose on or before 23 December 1996
  or on leases granted to a statutory authority of the Commonwealth, State
  or Territory on or before 23 December 1996 attract, for native title
  holders, a right to be notified and a right to comment;(42)
  and
• s 24JA and s 24JB: the creation
  of a plan of management for land reserved, proclaimed, dedicated etc.
  for a particular purpose on or before 23 December 1996 or for leases
  granted to a statutory authority of the Commonwealth, State or Territory
  on or before 23 December 1996 attract, for native title holders, a right
  to be notified and a right to comment.(43)

In addition, through the introduction
of s 24KA, the amended NTA modifies the procedural rights of native title
holders available under the freehold test in relation to acts providing
facilities for services to the public. Where the construction of public
facilities (44) occurs on land covered by a non-exclusive
agricultural or non-exclusive pastoral lease, the procedural rights of
native title holders are the same as those of the lessee.(45)
The procedural rights afforded to a lessee are unlikely to secure the
protection of Indigenous heritage and again, the responsibility for the
protection of Indigenous heritage will fall upon Commonwealth, State and
Territory legislative regimes. This is recognised in s 24KA(1)(d), which
requires that laws of the Commonwealth, a State or a Territory make provision
in relation to the preservation or protection of significant Indigenous
areas, or sites.

The effect of this reduction
of procedural rights is extensive, effectively covering all the following
kinds of lands and waters over which native title continues to exist:
parts of Australian agricultural land, surface and subterranean water,
airspace, reserved land, dedicated land and leases granted to statutory
authorities. The right to comment is unlikely to secure the protection
of Indigenous heritage, particularly where the decision maker is free
to ascribe minimal weight to such comments. In these instances, the responsibility
for the protection of Indigenous heritage will fall upon Commonwealth,
State and Territory heritage legislation.

Judicial interpretation
of procedural rights under the NTA

The right to comment has been
considered recently in Harris v Great Barrier Reef Marine Park Authority
(Harris).(46) The full Federal Court held that native
title claimants need only be given general notice of the areas to be affected
and the activities to be conducted pursuant to the proposed future act.
Nevertheless, the native title parties need not be notified of each specific
permit, as it would be sufficient to notify the registered native title
claimants that the Authority '.proposes to grant an unspecified number
of permits of a particular class for access to the area defined'.(47)
The court stated that the opportunity to comment is not 'a right to participate
in the decision whether to issue the permit or a right that entitles the
recipients to seek information from the decision-maker necessary to satisfy
those interests about matters of concern to them'.(48)
Furthermore, the 'opportunity to comment' provisions place no obligation
on the decision maker to 'make any particular use of the information provided
by way of comment or to act in a way that will ensure that no harm is
done to native title interests or that such harm is minimised'.(49)

In Lardil Kaiadilt, Yangkaal
& Ganagalidda v State of Queensland (50) a severely
restricted interpretation of 'future act' by Cooper J. has meant that
where procedural rights of native title holders or claimants are disregarded
by decision-makers, the decision will nevertheless be valid. The court
held that an act is only defined as a future act if it 'affects' native
title. On this reasoning, an act cannot 'affect' native title until there
is a native title determination. Native title claimants whose rights have
not been determined by a court cannot enforce the prescribed procedural
rights to prevent a government body or authority from proceeding to carry
out the activity. A subsequent native title determination will not affect
the validity of the future act, even though the procedural rights of Indigenous
people were ignored.

The amendments to the NTA have
resulted in reduced procedural rights in relation to future development
of the land. Judicial interpretation of the procedural rights that are
available has confirmed their inadequacy. The human rights implications
of these amendments and their interpretation by the courts are discussed
in Chapter 5 at page 151.

The reliance in the NTA
upon inadequate protection provided in Commonwealth, State and Territory
heritage legislation

As indicated above, the recognition and protection of native title could
have had the effect of locating the protection of Indigenous heritage
with that which provides its life blood, the relationship of Indigenous
people to their land. Instead the Act has expressly excluded heritage
protection preferring instead to hive it off to targeted, albeit inadequate,
heritage legislation.

Freehold Test

In the previous section it
was shown how amendments to the NTA diminished the protection available
to Indigenous culture and thus Indigenous heritage by removing or reducing
the application of the freehold test. Even where the freehold test does
provide procedural protection to native title, this may not be adequate
to protect the unique nature of native title, particularly its cultural,
spiritual and social qualities. Rather than incorporate processes dealing
specifically with this issue into the NTA, Parliament deferred the responsibility
for the protection of Indigenous heritage to other Commonwealth, State
or Territory legislation. Paragraph 24MB(1)(c) requires:

(c) a law of the Commonwealth,
a State or a Territory makes provision in relation to the preservation
or protection of areas, or sites, that may be:

(i) in the area
to which the act relates; and

(ii) of particular significance to Aboriginal peoples or Torres Strait
Islanders in accordance with their traditions.

The very general terms of s
24MB(1)(c), 'a law of the Commonwealth, a State or a Territory makes provision
in relation to the preservation or protection of areas, or sites', may
ultimately require interpretation by the judiciary, but the Commonwealth
appears to have adopted the view that so long as heritage protection is
provided for in a law of the Commonwealth, State or Territory, there is
no further inquiry as to its adequacy in protecting Indigenous heritage.

In the case of an act consisting
of the creation or variation of a right to mine for opals or gems, s 24MB(2)
extends the freehold test to circumstances where the act could not be
done if the native title holders instead held ordinary title to the area
concerned. In order to satisfy the s 24MB(2) variant of the freehold test,
s 24MB(2)(d), which is identical to 24MB(1)(c), must be satisfied. This
places even more reliance upon Commonwealth, State or Territory legislation
for the protection of Indigenous heritage.

The NTA has left the protection
of the unique nature of native title to ineffective Commonwealth, State
or Territory heritage legislation. Yet it is the responsibility of the
Commonwealth to ensure the standards established for the protection of
Indigenous heritage conform to human rights standards.

The right to negotiate

The right to negotiate(
51) is designed to provide native title claimants or native title
holders with the most comprehensive procedural rights where mining rights
and certain compulsory acquisitions of native title rights are proposed.

Section 39 of the NTA is a
pivotal provision in the right to negotiate process. When negotiations
under s 31(1)(b) have not resulted in an agreement, s 39 provides criteria
upon which the arbitral body can determine whether an act may or may not
be done and, if it may be done, whether conditions should be imposed.

Subparagraph 39(1)(a)(v) provides
the criterion dealing with the protection of Indigenous heritage:

(1) In making its determination,
the arbitral body must take into account the following:

(a) the effect of
the act on: .

(v) any area or site, on the land or waters concerned, of particular
significance to the native title parties in accordance with their traditions.

To date, the determinations
of the National Native Title Tribunal (NNTT) in its capacity as an arbitral
body (where the parties have not consented to the determination) are not
encouraging where the protection of Indigenous heritage is concerned.
In Western Australia, the grant of a mining lease or exploration licence
contains an endorsement drawing the grantee party's attention to the provisions
of the Aboriginal Heritage Act 1972 (WA). The NNTT has tended to defer
the protection of Indigenous heritage to the grant condition imposed by
the Government leaving it to be dealt with under the Aboriginal Heritage
Act 1972 (WA) and the Commonwealth Heritage Act. The reasoning behind
this approach is stated in the Waljen decision:(52)

The Aboriginal Heritage Act
has been considered and explained in Tribunal determinations relating
to the expedited procedure. An endorsement drawing the lessee's attention
to its provisions is included on all mining leases...

In earlier decisions, the
Tribunal has found that generally, but not always, the protections offered
by the Aboriginal Heritage Act are adequate to ensure that there is
not likely to be the interference with sites referred to in s.237(b)
on the basis of grantee parties acting lawfully. The Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 (Cth) also provides
for the use of emergency and permanent declarations to protect significant
Aboriginal areas which are under a threat of injury or desecration.

Each case will have to be
considered on its merits depending on the evidence, but on the face
of it, looking at this criterion alone, there is no reason for the Tribunal
to conclude that this legislative regime would necessarily be ineffective
in protecting sites.(53)

The NNTT has adopted this view
despite its reservations about the Aboriginal Heritage Act 1972 (WA) when
considering objections to the expedited procedure under s 32 of the NTA.
In making determinations as to whether the expedited procedures should
apply to a grant under the Mining Act 1978 (WA) the NNTT has consistently
found that once the existence of a significant area or site on the area
subject to the proposed grant is established, irrespective of the existence
of the Aboriginal Heritage Act 1972 (WA), the expedited procedure should
not apply. The reasons for those decisions is the possible operation of
section 18 of the Aboriginal Heritage Act 1972 (Cth) which gives the minister
and registrar of aboriginal sites the discretion to permit interference
with areas or sites of significance.(54) This reasoning
does not appear to have been as persuasive in NNTT decisions regarding
s 39 of the NTA, such as in the matter of Waljen.

Alternative provision schemes

The amendments to the NTA permit
States and Territories to remove the right to negotiate in relation to
specific acts or areas and implement 'alternative provision schemes' which
offer diminished rights to native title holders compared with those provided
in the Commonwealth NTA. The alternative provision schemes are:

• an exploration, prospecting
  or fossicking scheme under s 26A;
• a gold or tin mining scheme
  under s 26B;
• the creation of an approved
  opal or gem mining exclusion area under s 26C;
• an exception to the right
  to negotiate scheme under s 43A.

Alternative provision schemes
must comply with the freehold test.(55) In addition
the Commonwealth minister is required to take into account the existence
of a law of the Commonwealth, a State or a Territory that makes provision
in relation to the preservation or protection of areas, or sites before
approving the scheme.(56)

The standards applying to
the s26 schemes require only that Indigenous people be notified, heard
and consulted (ss26A,26B) or that the minister will consider submissions
made (s26C). Section 43A schemes reduce the rights of Indigenous people
from a right to negotiate to a right to be notified, heard and consulted.
These standards are well below those required for effective participation.

Included in the alternative
provision schemes are provisions dealing with the protection of significant
Indigenous areas or sites.

Before approving an exploration,
prospecting or fossicking scheme under s 26A, the Commonwealth minister
must take account of a number of matters, including the requirement in
s 26A(7)(a):

(7) The matters are:

(a) the protection
and avoidance of any area or site, on the land or waters to which the
native title rights and interests relate, of particular significance
to the persons holding the native title in accordance with their traditional
laws and customs.

An approved gold or tin mining
scheme has an identical requirement in s 26B(8)(a).

The creation of an approved
opal or gem mining exclusion area under s 26C requires that the State
or Territory minister invites and considers submissions about processes
for the identification and protection of significant indigenous areas
or sites. Subsection 26C(5) states:

Third condition

(5) The third condition is
that, before making the request, the State Minister or Territory Minister:

(a) notified the public,
and notified any registered native title bodies corporate, registered
native title claimants and representative Aboriginal/Torres Strait
Islander bodies in relation to any of the area, that he or she was
intending to make the request in relation to the area; and

(b) invited submissions
about the request, and in particular about the area covered by the
request and about processes for the identification and protection
of any area or site within that area of particular significance to
native title holders in accordance with their traditional laws and
customs; and

(c) considered any such
submissions that were made.

Before the Commonwealth minister
can make a determination under s 43A(1)(b) approving an alternative provision
area scheme the minister must be satisfied that the scheme complies with
s 43A(7). Subsection 43A(7) states:

(7) For the purposes
of paragraph (1)(b), the requirements of this subsection are complied
with if, in the opinion of the Commonwealth Minister, a law of the Commonwealth,
the State or the Territory provides, for the whole of the land or waters
to which the alternative provisions relate, in relation to the preservation
or protection of areas, or sites, that may be of particular significance
to Aboriginal peoples or Torres Strait Islanders in accordance with their
traditions.

On 27 April 1999 the Commonwealth
Attorney-General determined under s 43A(1)(b) that three Northern Territory
alternative provision schemes had complied with all the requirements of
s 24MB(1)(c) and s 43A, including s 43A(7). This occurred despite the
Indigenous concerns about the level of protection provided by Commonwealth
and territory legislation for the protection of Indigenous heritage in
the Northern Territory, under the Northern Territory Aboriginal Sacred
Sites Act 1989 (NT) and the Heritage Act.(57)

On 31 May 2000, the Commonwealth
Attorney-General made 9 determinations (58) in relation
to Queensland that schemes enacted pursuant to s 26A(1), 26B(1) and s
43A(1)(b) of the NTA complied with the legislative requirements of those
sections, including requirements for the protection of significant Indigenous
areas and sites in sections 24MB(1)(c), 24MB(2)(d), 26A(7)(a), 26B(8)(a)
and 43A(7). The Queensland scheme included:

• three s 26A exploration
  schemes;
• two s 26B gold and tin mining
  schemes; and
• four s 43A schemes.

This occurred despite the Queensland
Indigenous Working Group raising numerous and serious concerns with the
minister about the level of protection of Indigenous heritage provided
by Commonwealth and territory legislation , including the Northern Territory
Aboriginal Sacred Sites Act 1989 and the Heritage Act.(59)
Indeed, the Queensland government acknowledged in 1999 that its primary
legislation, the Cultural Record Landscapes Queensland and Queensland
Estate) Act 1987 (Qld), was not adequate to protect Indigenous heritage
The Queensland government stated in a 1999 discussion paper:

The Queensland Government
wishes to ensure that State legislation provides effectively for the protection
of Aboriginal and Torres Strait Islander cultural heritage whilst providing
a workable process for land use and development proposals. It is intended
that the Cultural Record (Landscapes Queensland and Queensland Estate)
Act 1987 be repealed and replaced with new legislation.(60)

Developments within the common
law and amendments to the NTA have meant that the opportunity to re-frame
the protection of Indigenous heritage within the broader protection of
Indigenous peoples' culture and its special relationship with land has
failed to eventuate. Accordingly the protection of Indigenous heritage
continues to rely on specially targeted State and Commonwealth Heritage
legislation.

The protection of Indigenous
culture through heritage legislation

Protection of Indigenous heritage
is a national responsibility that the Commonwealth has wide legislative
powers to achieve. The Australian Constitution gives the Commonwealth
the power to make special laws with respect to people of any race (61)
and to make laws with respect to copyright, patents of inventions and
designs, and trade marks.(62) The federal government
is a signatory to numerous international instruments that require it to
provide to Indigenous culture the same level of protection that is provided
to non-Indigenous culture.

Widespread criticism of the
effectiveness and appropriateness of the existing national framework of
Indigenous heritage protection, and in particular the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984 (Cth) (the Commonwealth Heritage
Act) led to a review of heritage protection by the Hon. Dr Elizabeth Evatt
AC (the Evatt Report).(63)

The Evatt Report was balanced
and comprehensive - it was conducted over an eight month period, received
nearly 70 submissions and was based on extensive consultations across
Australia. As a result, Indigenous people throughout Australia largely
support its recommendations.(64) The Evatt Report
was also endorsed at the National Heritage Convention in August 1998,
and a resolution stating that the government should adopt the recommendations
of the Evatt Report in order to ensure the protection of Indigenous heritage
was adopted.

In commissioning the Evatt
Report, the federal government recognised the need to reform existing
heritage legislation. However, the proposed reforms, enshrined in the
Aboriginal and Torres Strait Islander Heritage Protection Bill (No 2)
1998 (Heritage Bill) do not improve the level of protection currently
available to Indigenous culture in Australia. Rather, the Bill proposes
to devolve power and responsibility for Indigenous heritage to States
and Territories without ensuring that State and Territory-based protective
regimes will meet human rights standards.

The Heritage Bill was debated
and substantially amended in the Senate on 26 November 1999
(65) to ensure that it implemented the recommendations of the Evatt
Report. It was returned to the House of Representatives on 9 December
1999. The government has rejected the substantive amendments, although
it indicated during the Senate debate that it would consider the many
concerns raised.

The inadequacies of the Commonwealth
Heritage Act have resulted in three parliamentary reviews and a number
of draft amendments but no action has yet been taken to give it the broad
focus necessary to provide adequate protection to Indigenous culture and
heritage. The Act's unworkability is demonstrated through the example
of Hindmarsh Island, which cast Indigenous heritage into the political
sphere and the courts.(66)

The Special Rapporteur on
the Declaration on the Elimination of All Forms of Intolerance and of
Discrimination based on Religion or Belief, Mr Amor, made the following
comments on heritage protection after visiting Australia in 1997. (67)

Many different kinds of protection,
both specific and general, direct and indirect, are given to the land
and to sacred sites, including sacred objects, and therefore to their
religious dimension. They take the form either of regional agreements
and legislation ensuring the protection and management of Aboriginal
lands or Commonwealth and State and Territory laws on property and the
cultural heritage. These forms of protection are the expression of an
official policy in favour of Aboriginals, based on well-developed legislation.
There are still a number of difficulties, however, related to loopholes
and shortcomings in the laws and to interference with their objective,
mainly owing to conflicts of interest.

Regarding the loopholes and
shortcomings in the law, in the first place and in general, there is
the problem of its complexity, particularly with respect to relations
between Federal and State systems, that is, between federal Laws, which
are few and protective, and State and Territory laws, which are many,
uneven in the degree of protection they afford and sometimes inadequate
in relation to Commonwealth standards.

One criticism which is often
put forward is the inability of these laws derived from a Western legal
system to take account of Aboriginal values. A basic difficulty arises
from the fact that, under some laws, Aboriginals have to prove the religious
significance of sites and their importance; partly this is difficult
owing to different approaches by different Aboriginal groups to sacred
sites and to the fact that knowledge of the sites is restricted to a
few gender-specific individuals and partly it conflicts with some Aboriginal
values and customs, including the importance given to secrecy.(68)

The theoretical difficulties
with the heritage legislation noted by Mr Armor can be summarised as inadequate
protection, unworkability and ineffective participation by Indigenous
people in the legislation that affects them.

From its enactment in 1984
until June 1999, approximately 200 applications have been lodged under
the Commonwealth Heritage Act. Until December 1998 the Minister for Aboriginal
and Torres Strait Islander Affairs was responsible for administering the
Heritage Act assisted by the Aboriginal and Torres Strait Islander Commission.
This responsibility was then transferred to the Minister for the Environment
who administers the Act through Environment Australia.

The outcomes in terms of ministerial
declarations of protection over the fifteen years of the Act's operation
are as follows:

• eight declarations under
  s 10 protecting objects of significance to Indigenous people;
• five emergency (temporary)
  declarations under s 9 protecting significant places; and
• two declarations providing
  long term protection to significant Indigenous sites under s 10 of the
  Heritage Act, Junction Waterhole (Niltye/Tnyere-Akerte), Alice Springs
  and Boobera Lagoon, Moree, NSW.(69) The order
  protecting Boobera Lagoon was scheduled to come into effect on 1 July
  2000. The Minister for the Environment deferred the declaration of the
  protection order until July 2002 to allow water skiers a further two
  years to find an alternative site for their activities.

The local Aboriginal community
has been actively pursuing protection of Boobera Lagoon through available
heritage protection measures for over 25 years. They have consistently
sought to restrict recreational and other use of the area. Boobera Lagoon
was officially catalogued by the National Parks and Wildlife Service in
1977 but its significance to Aborigines has been acknowledged by non-Aborigines
at least since 1899 when it was recorded by a government surveyor. The
site is significant chiefly because of the belief that the local Rainbow
Serpent lives in the Lagoon. The area of significance is the entire lagoon
and the land bordering it.

The importance of Boobera Lagoon
was considered by the Human Rights and Equal Opportunity Commission in
The Toomelah Report: Report on the Problems and Needs of Aborigines Living
on the NSW-Queensland Border.(70)

In 1996 Hal Wootten AC QC
articulated the significance of Boobera Lagoon to the Kamilaroi people
in his Report to the Minister for Aboriginal Affairs.(71)
After considering the matters raised by the Report, the minister was satisfied
that Boobera Lagoon is a significant Aboriginal area and is under threat
of injury or desecration.(72)

As a result of the minister's
delay in issuing a protection order and the Lagoon being treated as a
recreation site, local Aboriginal people are prevented from fulfilling
their role as custodians of the area. This represents a loss for the Aboriginal
community and the wider Australian community.

In order to provide water
skiers and other recreational users with an opportunity to find an alternative
site the protection order has been delayed for a further two years. The
interests of recreational users have been preferred to the human right
of Indigenous people to have their culture protected.

Decisions such as those in
relation to Boobera Lagoon reflect the inadequacy of the Commonwealth
Heritage Act as a means of protecting Indigenous heritage. Yet, as pointed
out above, amendments to the NTA have meant that Indigenous people are
reliant on targeted heritage legislation, including the Commonwealth Heritage
Act, as the major source of heritage protection. It is important therefore
that deficiencies in the Commonwealth Heritage Act are identified and
remedied consistently with international human rights standards.

The Evatt Report on the Commonwealth
Heritage Act

The Evatt Report (73) identified many deficiencies
in the Commonwealth Heritage Act which can be characterised in terms of
its failure to meet international standards and obligations with respect
to the protection of Indigenous heritage and their right to self-determination.

Protection of Indigenous
heritage

• Inadequate State/Territory
  legislation. The Act does not operate as it was intended - as a last
  resort - because its effectiveness is compromised by inadequate protection
  at the State and Territory level. Consequently, the Act is often required
  to provide primary site protection rather than 'last resort' back-up
  to legislation in the States and Territories.(74)
  This has been compounded by State and Territory opposition to intervention
  by the Commonwealth which has contributed to the low level of protection
  being accorded under the Act.(75)
• Delay: The process under
  the Act for the Commonwealth minister to consult with State or Territory
  ministers - a process which excludes the applicant and other interested
  persons - is unnecessarily long, placing Indigenous heritage at risk
  where no interim protection is in place.(76)
• Delay and onerous requirements:
  A lack of adequate procedures in the Act has contributed to delays,
  litigation and higher costs for the applicants and other affected parties.
  As a result of successful legal challenges of the reporting process,(77)
  strict requirements on the reporting process were imposed. These requirements
  have been burdensome and costly for everyone involved, and the outcomes
  have made the Act unworkable when considered against its original intentions.(78)
  
• Delay and Failure to Provide
  Effective Protection: The operation of the Act was subject to unreasonable
  delay in responding to and deciding applications for protection, causing
  concern from Indigenous people (that some sites for which protection
  was sought were damaged as a result) and from developers generally.(79)
  
• Lack of Confidentiality:
  Indigenous people are concerned that the Act does not protect confidential
  information which may be communicated during the reporting process from
  disclosure.(80) This has been borne out in Chapman
  v Luminis Pty Ltd [No 2](81) and is a disincentive
  for Indigenous people to use the Act.
• Incomplete Protection: The
  Act fails to cover all aspects of Indigenous heritage important to Aboriginal
  people such as intellectual property (82) and
  the regulation of the use and sale of significant Indigenous objects.

Self-determination

• Unsatisfactory Model for
  Decision-Making. So long as the Commonwealth minister considers the
  matters to which s 10(1)(b) of the Act directs attention, she or he
  is not obliged to act, even if an area is of significance to Aboriginal
  people.(83)
• The Act fails to sufficiently
  include Indigenous people in decisions relating to protection or in
  the administration of the Act.(84)
• The Evatt Report also identified
  the failure to provide for Indigenous involvement in decision making
  and policy formulation on heritage protection issues as contrary to
  the requirements imposed by Article 27 of the ICCPR, and recommended
  the situation be remedied by establishing an Aboriginal Cultural Heritage
  Advisory Council to provide advice on the operation of the Act and relevant
  processes.(85)

Recommendations in the Evatt
Report: Commonwealth processes

The Evatt Report
makes numerous recommendations in relation to the scope, functions and
processes under the Commonwealth Heritage Act in order to address the
above deficiencies. The comprehensive recommendations seek significant
changes to the legislation in the following areas:

Protection of Indigenous
Heritage

• The Commonwealth Act and
  minimum standards: recommendations deal with protection of information
  from disclosure, information protocols, exemption from the Freedom of
  Information Act 1982 (Cth), exemptions from various Court procedures,
  public interest immunity, access for protection of heritage, provision
  of penalties;
• Making the Act more effective:
  recommendations deal with improving the process for determining whether
  to protect indigenous heritage, ensuring protection is effective, emergency
  and interim protection, the obligation to determine applications for
  the protection, the process for making and recording applications for
  protection, procedural fairness, consultation with State or Territory
  Ministers, the processes to be employed by a heritage protection agency
  and improving accountability;(86)
• Protecting Aboriginal objects:
  recommendations deal with the enactment of national, uniform laws to
  regulate the sale of significant indigenous objects, agreements in relation
  to objects, the extension of the definition of objects to include records
  and the repatriation of objects.(87)

Self-Determination

• Deciding significance is
  an Aboriginal issue; the report makes recommendations on the basis for
  assessment of significance, the scope of reliance on State or Territory
  assessment, referral of applications to accredited State or Territory
  processes, establishing an Aboriginal cultural heritage committee; separating
  the decision in relation to the significance of an area or object from
  the decision to protect, the use of Aboriginal information in the assessment
  of significance, binding the minister to an assessment of significance,
  resolving dissent between Aboriginal groups, and the assessment of the
  threat upon Indigenous heritage;(88)
• Encouraging agreement:
  the report recommends mediation to deal with conflicts over Indigenous
  heritage issues;(89)
• An Aboriginal heritage
  protection agency and Aboriginal cultural heritage advisory council:
  the report recommends the creation, composition and functions of a new
  Commonwealth Heritage Protection Agency and the creation and composition
  and functions of an Aboriginal cultural heritage advisory council.(90)
  

Reforming State and Territory
heritage protection legislation to ensure effective interaction with a
reformed Commonwealth Act

The Evatt Report
acknowledges that primary responsibility for heritage protection must
operate at the State and Territory level. The role of the Commonwealth
is to ensure acceptable State and Territory levels of protection by providing
protection of last resort when the State and Territory protection regimes
fail to deliver the required standard of protection. This could only be
achieved through effective interaction between a reformed Commonwealth
Act and State and Territory heritage protection legislation.(91)

The success of the
interaction would be totally reliant upon reforming State and Territory
heritage protection legislation (92) to achieve
minimum standards of State and Territory heritage protection in key areas
(93) and ensure that the mechanism for determining
the significance of an area or object is both independent and based upon
views, laws and customs of Indigenous people.(94)
Failure to achieve an effective interaction due to poor standards or improper
implementation of State and Territory heritage protection legislation
would continue to place the Commonwealth Act in the unintended and unsuited
role of providing a primary level of protection as occurs, for example,
in Queensland and Western Australia.(95)

The Aboriginal and Torres
Strait Islander Heritage Protection Bill 1998

While the recommendations
of the Evatt Report have not been implemented, measures taken by the Commonwealth
over the past four years have reinforced its central view - that the national
framework of Indigenous heritage protection legislation requires immediate
attention if Indigenous heritage is to be effectively protected in Australia.

Partly as a response
to the Evatt Report, the federal government initiated an overhaul of the
Commonwealth Heritage Act on 17 December 1996. The government presented
the Aboriginal and Torres Strait Islander Heritage Protection Bill (No
1) 1998 in the House of Representative on 2 April 1998. That Bill lapsed
on 3 October 1998 and on 12 November 1998 an amended Bill, the Aboriginal
and Torres Strait Islander Heritage Protection Bill (No 2) 1998 ('Heritage
Bill '), was introduced and passed by the House of Representatives. The
Heritage Bill was substantially amended by the opposition parties in the
Senate on 26 November 1999.

Two Commonwealth
parliamentary committees, the Parliamentary Joint Committee on Native
Title and the Indigenous Land Fund and the Senate Legal and Constitutional
(Legislation) Committee have, on 2 April 1998, 1 June 1998, and 31 March
1999 respectively, considered the Evatt Report. On each occasion, the
Committee divided with the government majority making the recommendations
of the Committee and the Opposition and the Democrats producing a minority
report demanding adherence to the Evatt Report.

The end result of
this long process is that no amendments have been made to the Commonwealth
Heritage Act. State and Territory Indigenous heritage protection legislation
also continues to operate without change. Finally, the legislation that
is supposed to address these issues, the Heritage Bill, has stalled because
it is unsatisfactory in many respects. The Heritage Bill weakens the inadequate
protection currently available from the Commonwealth for areas and objects
of significance to Indigenous people. It provides for the accreditation
of State or Territory Indigenous heritage protection legislation, which
under the proposed regime, will be responsible for all Indigenous heritage
matters other than those 'in the national interest'. An applicant must
exhaust all the remedies of a State or Territory regime, irrespective
of whether that regime is accredited or not, before applying for 'national
interest' status under the Commonwealth legislation.

Improving the effectiveness
and efficiency of the Commonwealth Heritage Act is essential if Australia
is to meet its human rights obligations. This is particularly so with
the failure of native title to provide adequate protection to Indigenous
culture. My concerns in relation to the proposed reform of the Commonwealth
Heritage Act, as encapsulated in the Bill, can be seen in terms of the
human rights principles that firstly require adequate protection of Indigenous
culture and secondly effective participation of Indigenous people in the
decisions made in relation to their culture.

Protection of Indigenous Heritage

• The national interest test
  is not an adequate safety net for ineffective State legislation; 'National
  interest' is the threshold test for protection of Indigenous heritage
  under the Commonwealth Act where protection is not provided for under
  an accredited State or Territory Act.(96) However,
  'national interest' is not defined in the Bill and the Explanatory Memorandum
  to the Bill states that ". the circumstances in which protection would
  be in the national interest are likely to be quite rare".(97)
  
  
  The failure of the Bill to provide for a definition of 'national interest'
  that includes protection of areas and objects of significance to Indigenous
  people considerably weakens the protection available.
  
  The Commonwealth's role in heritage protection is essential. It is the
  Commonwealth's responsibility to ensure that heritage protection in
  Australia is sufficient to meets its obligations under ICCPR to ensure
  protection of Indigenous peoples rights to self-determination, protection,
  equality, effective participation and the right to freedom of religious
  expression. Where a breach of human rights standards arises because
  of inadequate State and Territory standards, as is the case in relation
  to heritage protection, the Commonwealth is responsible to ensure that
  the international requirements are met. The Human Rights Committee stated
  in its Concluding Observations in July 2000:
  

  The Committee considers
  that political arrangements between the Commonwealth Government
  and the governments of states or territories may not condone restrictions
  on Covenant rights that are not permitted under the Covenant.(98)

• The minimum standards for
  State and Territory legislation are inadequate; Land management has
  traditionally been the legislative and administrative sphere of State
  and Territory, rather than Commonwealth, governments. Indigenous heritage
  protection is, however, not simply a land management issue. The New
  South Wales Aboriginal Land Council put it this way:

...Aboriginal heritage
is not just a land management issue; it is the protection of a people's
cultural heritage. That is more than just land management. That needs
to be borne in mind in dealing with this Bill. The next point is that
NSWALC has no problem and in fact supports state involvement in Aboriginal
heritage protection. However, it needs to be ensured by the Commonwealth
that the standards are sufficiently high, sufficiently prescriptive
and sufficiently rigorous so that it actually takes place. That is part
of the Commonwealth fulfilling its obligations to Aboriginal people
across the country.(99)

An accreditation standards framework was developed in the Evatt
Report with a view to providing uniformity across the country on key aspects
of State and Territory Indigenous heritage protection legislation. The
minimum standards contained in s 26(1) of the Bill however are drafted
in a manner that is too general to clearly establish uniform standards.
The Heritage Bill currently lacks the following minimum standards in relation
to the laws of a State or Territory seeking accreditation:

a) Provision for access for
Indigenous persons to exercise responsibilities in relation to significant
Indigenous areas and objects.

(b) Provision for the establishment
of an independent body in accordance with the recommendation of the
Evatt Report,(100) to assess the significance
of areas and objects. The separation of the function of assessment of
cultural significance, that is, assessment of the factual issues from
the exercise of ministerial discretion is essential to ensure unbiased
decisions.(101) This assessment should be conducted
by an independent body with substantial Indigenous control.

(c) Provision for the notification
of Indigenous heritage on certificates of title covered by a heritage
agreement. In accordance with the principle of blanket protection for
Indigenous heritage, all title holders should be notified of heritage
sites on parcels of land. This is a necessary requirement in order to
establish a satisfactory system of prosecution and defence for violation
of heritage protection.

(d) Provision for emergency
and/or interim protection to prevent harm to significant areas or objects
whilst a matter is processed.

(e) Provision for:

• requiring reasons be
  provided to the Indigenous applicants in relation to a decision to
  remove or otherwise affect heritage protection and that those reasons
  will be taken to form part of the record; and
• judicial review by Indigenous
  applicants is not precluded from decisions that remove or otherwise
  affect heritage protection; and
• that decision makers
  give substantial weight to the particular nature of Indigenous heritage
  and the importance of protecting significant areas and objects when
  deciding to remove or otherwise affect heritage protection.

(f) Provision for the monitoring
of the implementation and performance of accredited regimes on a triennial
basis as an additional basis for the revocation or variation of accreditation
of State and Territory regimes under s 27. The standard by which the
implementation and effectiveness of an accredited state or territory
regime is to be determined must be its record of effective protection
of significant Indigenous areas and objects over the previous 3 years.
Advice to the minister should culminate in a positive decision regarding
the ongoing accreditation of a state or territory regime. The monitoring
and review process should also provide for the notification of all interested
parties and the receipt of their submissions.

. The provision
of interim and emergency protection orders are insufficient to provide
adequate protection.

The following concerns
arise in relation to the making of an Interim Protection Order (IPO) under
the Bill:

(a) There are no guidelines
for the decision to grant an IPO under the Bill.It appears to be entirely
a matter for the minister upon the lodgement of an application for an
IPO;

(b) The drafting
of s 63(2)(b) raises the question as to whether information supplied
separately from the originating application can be taken into account.
The requirement that such information should not be taken into account
should be placed beyond doubt;

(c) Where interim
protection is sought, it is usual that the standard applied to obtaining
long-term protection is reduced to one a prima facie level. This is
envisaged, but not necessarily achieved, by s 63(2)(b) of the Bill.
Paragraph 63(2)(b) requires that 'the Minister is satisfied that the
application, on its face, established' the matters in subparagraphs
(i)-(iii). That is, the significance of the area or object, that the
area or object is under serious threat of injury or desecration and,
that the protection of the area is in the national interest. This test
does not appear to adopt the usual principles of law where interim relief
is sought, namely a reduction of the standard of proof to the prima
facie level. Instead, the drafting requires that the matters in subparagraphs
(i)-(iii) be 'established' by the application - a seemingly impossible
task at that stage. By way of contrast, it is sufficient for an IPO
that the Director is 'satisfied' that the protection of an area or object
is in the national interest.

In relation to the
making of an Emergency Protection Order (EPO) under the Bill, section
62 currently requires information to be supplied separately from the
originating application, leaving the process open to the involvement
of non-applicant parties and consequential conflict and litigation.
The amended definition of the originating application provides a simple
mechanism for the utilisation of the rejected application in section
62. This will avoid possible challenges from other interested parties
seeking to provide information and allows parity between sections 62
and 63 to be secured.

• the requirement to exhaust
  remedies creates serious or fatal delays for Indigenous applicants.
  Under the Bill it is necessary to exhaust state or territory remedies
  before an application for a heritage protection order can be made, even
  where a state or territory regime is not accredited. Consequently Indigenous
  applicants waste valuable time and resources exhausting the 'remedies'
  of an unsatisfactory state or territory regime, risking the desecration
  of a significant area or object while this is occurring.

Self-determination

• the confidentiality of
  cultural information is not guaranteed. Subsection 30(4) of the Bill
  (No.2) provides the director with the discretion to determine the confidentiality
  of cultural information rather than Indigenous people. A process that
  provides a primary role for Indigenous people in this important matter
  should replace this.
• Indigenous people are not
  recognised as the primary source of information. Section 57 of the Bill
  requires only that the director or independent reviewer 'must have regard
  to must have regard to must have regard to must have regard to must
  have regard to the principle that indigenous persons are the primary
  source of information about the significance.' The application of this
  principle is discretionary not mandatory. Furthermore, s 57 fails to
  recognise that Indigenous persons are the primary source of information
  in determining the threat to a significant area or object posed by a
  proposal.
• The Commonwealth body administering
  Indigenous heritage protection is not sufficiently independent.

It is essential that the
Commonwealth body established under the Bill (No.2) to carry out heritage
functions is independent. This body would operate in a highly specialised
area and the legislation should prescribe the way the body operates
and the qualifications of its staff and consultants. At the very least:.Chapter
4 147

(a) the body must operate
in a fair, just, economical, informal and prompt way and in so doing,
it must take account of the cultural and customary concerns of Indigenous
people; and

(b) staff and consultants
retained by the body have an understanding of Indigenous culture and
heritage and an ability to deal with Indigenous persons in a culturally
sensitive manner.

(c) consistent with the recommendations
of the Evatt Report, the director or delegate who conducted the mediation
should not take part in the reporting process unless the interested
parties agree.

• Provision has
  not been made for an Indigenous advisory council as recommended in the
  Evatt Report. Under the recommendations, the functions of the Council
  would be:

(a) to advise the director and the Commonwealth minister on:

(i) issues arising under
the Act, especially the most appropriate means by which protection
is provided to areas and objects of significance and the recovery
and repatriation of objects. This should also include the accreditation
and effectiveness of accredited State and Territory regimes;

(i) appropriate
procedures for dealing with indigenous people in the performance of
functions under the Act;

(ii) the making
of regulations under the Act;

b) to liaise with, and the
promote the views of, Indigenous people in relation to heritage protection
issues;

(d) to undertake research
for the purpose of carrying out its functions.

(e) to advise the director
and/or minister with respect to matters that involve intra-Indigenous
disputes about the threat to or significance of an area or object and
the protection of the area or object.

The Heritage Bill represents
a retreat from the Commonwealth's national and international responsibility
for Indigenous heritage protection. The government should, as a matter
of urgency, reform the national framework of legislation so that it complies
with Australia's international obligations to provide protection to Indigenous
culture and ensure the effective participation of Indigenous people in
the decision around their heritage.

In Australia, the recognition
of Indigenous interests in land have primarily been forged by non-Indigenous
land use requirements. Existing heritage legislation was born out of a
need to incorporate Indigenous culture into non-Indigenous systems of
property development and land use. Although the recognition of native
title acknowledged the traditions and customs of Indigenous people, it
did not provide a comprehensive system for the protection of Indigenous
culture which would include Indigenous heritage.

Separate heritage regimes
at State, Territory and Commonwealth levels have fragmented the protection
of Indigenous heritage. One of the consequences of shaping Indigenous
rights through inadequate legislative regimes is a failure to provide
protective mechanisms which fully represent and safeguard Indigenous culture.
Native title offered an opportunity to unify these diverse sources so
that the protection of Indigenous heritage was provided through the legal
right of Indigenous people to their land and their culture. Amendments
to the NTA in 1998 and developments in the common law of native title
since its recognition in 1992 have meant that this opportunity has not
eventuated.

---

Footnotes

1.
Rose, D.B., Nourishing Terrains: Australian Aboriginal Views of Landscape
and Wilderness, Australian Heritage Commission, 1996, quoting Seddon,
G., 'The evolution of perceptual attitudes' in Seddon, G. and Davis, M.
(eds), Man and Landscape in Australia; Towards an ecological vision, Australian
National Commission for Unesco, AGPS, Canberra, p10.

2.
Daes, Mdme Erica-Irene, Final Report Indigenous Peoples and Their Relationship
to Land, UN Doc E/CN.4/Sub.2/2000/25, para 114.

3.
ibid, para 114.

4.
The Human Rights Committee monitors State Parties' compliance with the
International Covenant on Civil and Political Rights.

5.
Human Rights Committee, Consideration of Reports Submitted Under Article
40 - Concluding Observations of the Human Rights Committee, 28 July 2000,
CCPR/CO/69/AUS., para 9.

6.
Hill, Senator Robert, Press Release: Decision on the Future of Boobera
Lagoon, 28 June 2000, www.environment.gov.au/minister/env/2000/mr28jun00.html,
(27 November 2000).

7.
Mr Lahlah, Transcript of Human Rights Committee's examination of Australia,
21 July 2000, www.faira.org.au (27 November 2000). The attempts of the
local Aboriginal Community to protect Boobera Lagoon and the failure of
the Commonwealth Minister to issue a protection order over the lagoon
are discussed below at p138.

8.
Daes, Erica-Irene, Report of the seminar on the draft principles and guidelines
for the protection of the heritage of Indigenous people. Geneva, 28 February
- 1March 2000, 19 June 2000. E/CN.4/Sub.2/2000/26. These principles are
also annexed to the study Protection of the Heritage of Indigenous People
produced in conformity with Sub-Commission resolution 1993/44 and decision
1994/105 of the Commission on Human Rights UN Doc E/CN.4/Sub.2/1995/26,

9.
ibid, Appendix 1, para 1.

10.
ibid, Appendix 1, para 2.

11.
ibid, Appendix 1, para 3.

12.
ibid, Appendix 1, para 4.

13.
ibid, Appendix 1, para 5.

14.
ibid, Appendix 1, paras 23 & 24.

15.
Martinez, M.A., Study on treaties and other constructive arrangements
between States and indigenous populations, Final Report, E/CN.4/Sub.2/
1999/20, 22 June 1999.

16.
Martinez, ibid, para 252.

17.
Western Australia and Ors v Ward and Ors (2000) 170 ALR 159 (Muriuwung
Gajerrong case).

18.
ibid.

19.
The appeal will be heard by the High Court on 6-16 March 2001.

20.
Ward, op cit, p242.

21.
Ward, op cit, pp296, 301 & 302.

22.
The Members of the Yorta Yorta Aboriginal Community v The State of Victoria
(Unreported, Federal Court of Australia) [1998] 1606 FCA, 18 December
1998, Olney J.

23.
ibid, para 116.

24.
ibid, para 124.

25.
ibid, para 122.

26.
NTA s 47B(1)(a) & (b).

27.
NTA s 47B(1)(9c).

28.
McDougall, G., Transcript of Australia's Hearing Before the CERD Committee,
FAIRA, CERD Transcript, 21-22, op cit, p4-5.

29.
(1999) UN doc. CCPR/C/79/Add.105 para 8.

30.
A further discussion of procedural rights under the amended NTA is at
pp150-157 of this report.

31.
The original NTA, s 23(6).

32.
NTA, s 24MC.

33.
NTA, ss 24MA & 24MB.

34.
NTA, ss 24MB & 24MD.

35.
Defined in NTA, s 24GA.

36.
NTA, s 24GB(9).

37.
NTA, s 24GB(9).

38.
NTA, s 24GD(6).

39.
NTA, s 24GE(1)(f).

40.
NTA, s 24HA(7).

41.
NTA, s 24ID(3).

42.
NTA, s 24JB(6).

43.
NTA, s 24JB(7).

44.
Defined in the NTA, s 24KA(2).

45.
NTA, s 24KA(7)(a).

46.
Unreported, Federal Court of Australia, [2000] FCA 603 (11May 2000), per
Heerey, Drummond and Emmet J.J.

47.
paragraph 45.

48.
paragraph 38.

49.
paragraph 51.

50.
Unreported, Federal Court of Australia [1999] FCA 1633, 24 November 1999,
Cooper J.

51.
NTA, Subdivision P of Division 3 of Part 2.

52.
State of Western Australia and Thomas & Ors (Waljen) and Austwhim Resources
NL, Aurora Gold (WA) Ltd (1996) 133 FLR 124; also located online at www.nntt.gov.au/determin.nsf/area/
homepage.

53.
ibid, p209-211.

54.
See, for example, Dann (No.2)(Unggumi Ngarinyin)/Western Australia/GPA
Distributors, (Unreported, NNTT) WO95/19, 10 June 1997, Sumner C.J. and
Brownley (Bibila Lungkutjarra People)/Western Australia/ Aberfoyle Resources
Ltd., (Unreported, NNTT) WO98/907, 4 November 1999, Lane, Mrs P.; both
online at www.nntt.gov.au/determin.nsf/area/homepage

55.
NTA, ss 26(2), 43(1) & 43A(1).

56.
NTA, SS26A(1), 26B(1), 26C(2), and 43A(1)(b). The determination to approve
is subject to disallowance by the Commonwealth Parliament - see NTA, s
214.

57.
Submission of the Central and Northern Land Councils pursuant to s 43A(3)(b)
of the Native Title Act dated 12 April 1999 pages 74-76.

58.
A further four determinations under s 43(1)(b) of the Native Title Act
were also made on that date.

59.
Comments to the Commonwealth Attorney-General Concerning the Lack of Proper
Provision for the Protection of Indigenous Cultural Heritage in Queensland
Native title Legislation dated January 2000.

60.
Queensland's Indigenous Cultural Heritage Legislation Review: Draft Model
for New Legislation p5.

61.
The Constitution, s 51(xxvi).

62.
The Constitution, s 51(xviii).

63.
Evatt, Dr Elizabeth, Review of the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984, Canberra, 22 August 1996.

64.
See, for example, ATSIC, Submission to Senate Legal and Constitutional
(Legislation) Committee, 12 February 1999, p15 and ATSIC Heritage Issues
Paper www.atsic.org.au/ default_ie2.asp (27 November 2000).

65.
The Opposition and the Democrats jointly moved 179 amendments.

66.
Bropho v Tickner (1993) 40 FCR 165; Tickner v Bropho (1993) 114 ALR 409;
Chapman & Others v Tickner & Others (1995) 55 FCR 31; Tickner & Others
v Chapman & Others (1995) 57 FCR 451; State of Western Australia v Minister
for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633; Minister
for Aboriginal and Torres Strait Islander Affairs v State of Western Australia
(1997) 149 ALR 78. The qualifications of the person appointed by the Minister
to report under s 10(1)(c): Wilson v Minister for Aboriginal and Torres
Strait Islander Affairs (1996) 189 CLR 1.

67.
Amor, A., Report submitted by Mr Abdelfattah Amor, Special Rapporteur,
in accordance with Commission on Human Rights resolution 1996/23 Addendum,
visit to Australia, 4 September 1997. UN Doc E/CN. 4/1998/6/Add.1.

68.
Paras 91, 92, 93.

69.
See discussion of Boobera Lagoon at pp120-121.

70.
Einfield, Hon. Justice Marcus, Killen, Hon. Sir James & Mundine, Kaye,
The Toomelah Report, Human Rights and Equal Opportunity Commission, Sydney,
June 1988.

71.
Hal Wootten, A.C. Q.C., Report to Minister for Aboriginal Affairs re Boobera
Lagoon, April 1996.

72.
The Commonwealth Heritage Act, s 10(1)(b).

73.
op cit, para 2.30, p14.

74.
op cit, para 2.31, p14 & 15.

75.
op cit, para 2.31, p14 & 15.

76.
See, generally, Bropho v Tickner (1993) 40 FCR 165; Tickner v Bropho (1993)
114 ALR 409; Chapman & Others v Tickner & Others (1995) 55 FCR 31; Tickner
& Others v Chapman & Others (1995) 57 FCR 451; State of Western Australia
v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37ALD
633; Minister for Aboriginal and Torres Strait Islander Affairs v State
of Western Australia (1997) 149 ALR 78.

77.
op cit, para 2.26, p13.

78.
op cit, para 2.27 & 2.28, p13 & 14.

79.
op cit, para 2.34, p15 & 16.

80.
Unreported, Federal Court of Australia [2000] FCA 1010, 28 July 2000,
von Doussa J.

81.
Except in Part IIA, which applies only in Victoria.

82.
Wamba Wamba Local Aboriginal Land Council v Minister Administering the
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989)86
ALR 161, 170.

83.
op cit, para 2.37, p16 & 17.

84.
op cit, recommendation 11.16, p223.

85.
op cit, recommendations 10.1-10.48, pp145-205.

86.
op cit, recommendations 12.1-12.4, pp224-233.

87.
op cit, recommendations 8.1-8.9, pp109-126.

88.
op cit, recommendations 9.1-9.8, pp127-144.

89.
op cit, recommendations 11.1-11.17, pp206-223.

90.
op cit, Chapter 5, pp60-74.

91.
op cit, recommendations 5.1, p70.

92.
op cit, recommendations 5.2 p70 & 5.3, p73.

93.
op cit, recommendation 5.4, p73.

94.
op cit, paragraphs 5.11 & 5.12 (p64 & 65).

95.
Where an accredited State or Territory heritage regime (AR) is in operation,
the Bill imposes a 'national interest' test upon: o the acceptance of
an application for a long term protection order (LPO) (s 39(2)); o the
making of an emergency protection order (EPO) (s 62(3))(c)); o the making
of an interim protection order (IPO) (s 63(2))(b)(iii)); and o the making
of an LPO (s 45). An accredited State and Territory heritage regime is
one that complies with the minimum standards set out in s 26 of the Bill
and is the subject of a declaration under s 25(1).

96.
Commonwealth of Australia, Explanatory Memorandum: Aboriginal and Torres
Strait Islander Heritage Protection Bill (No.2) 1998, cl 45, p15.

97.
op cit, para 14.

98.
Mr Warwick Robert Baird, Hansard, Senate, 19 February 1999, p56.

99.
Evatt Report, op cit, para 6.19 & recommendation 6.3, pp83 & 84.

100.
Hansard, Mr Warwick Robert Baird, Independent Legal Adviser, New South
Wales Aboriginal land Council, Oral submission to Senate and Legal Constitutional
Legislation Committee, Reference: Aboriginal and Torres Strait Islander
Heritage Protection Bill 1998, Friday 19 February 1999, page 58.

101.
Evatt Report, op cit, recommendation 11.13, p223.