Today, the Commonwealth Minister for the Environment and Water, the Hon Tanya Plibersek MP formally tabled the much anticipated response to the interim and final report by the Joint Select Committee on Northern Australia into the destruction of Indigenous heritage Sites at Juukan Gorge.

Snapshot

The Commonwealth Government has wholly, or in principle, accepted seven of the eight recommendations made in ‘A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge’ (Final Report). The recommendations notably include:

  • a new legislative framework for cultural heritage protection at the national level;
  • a review of the Native Title Act 1993 (Cth) (NT Act), with the aim of addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander Peoples in the context of the ‘future act’ regime;
  • establishment of an independent fund to administer funding for prescribed bodies corporate (PBCs) under the NT Act; and
  • increased transparency of PBC decision making.

The recommendation to shift the authority for decision making from the Environment Minister to the Minister for Indigenous Australians is still under consideration by the Commonwealth Government.

Commonwealth Response 

The Commonwealth Government has either agreed, agreed in principle, or taken note of each of the recommendations in the Final Report and the interim report. We discussed the findings and recommendations made in the Final Report in October 2021.

  1. Role of the Minister for Indigenous affairsNoted. The Government is committed to ensuring that the responsibility for legislation and policies relating to the protection of Aboriginal cultural heritage sit with the most appropriate Minister and portfolio. However, this will be considered as part of the reform that the Government has committed to in recommendation 3.
  2. UNESCO intangible heritage conventionAgreed in principle. The Government has not explicitly agreed to ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003. Rather, the Government believes that the matter should be more fully considered, including impacts that the ratification would have on the protection of intangible cultural heritage practice and implementation resources required to administer the convention. This is because of the potential diversity of what could be defined and considered as intangible cultural heritage. Accordingly, the Government has stated that it is currently undertaken consultation which will inform its position on the convention.
  3. New national minimum standards. The Government has responded to Recommendation 4 into groups of sub-recommendations.
    • Commonwealth ‘veto’ power – The Government has committed to reforming the national heritage protection framework through a co-design process with First Nations peoples. The co-design process is currently in stage two of a national engagement process, which includes canvassing recommendations made by the Committee’s two reports and developing options for reform.
    • Enforcement through civil action – Agreed in principle. The Government is considering options to strengthen the enforcement of federal heritage protections.
    • Agreements excluding Commonwealth protection Agreed in principle. The Government considers this is more appropriately dealt with in cultural heritage legislation.
    • Responsible Minister Noted. The Government is committed to ensuring the most appropriate Minister and portfolio has responsibility for the legislation.
  4. Review of the NT ActAgreed in principle. The Government is considering the most appropriate mechanism(s) to review the issues identified in Recommendation 4. However, the Government considers that some aspects of Recommendation 4 are more appropriately dealt with in cultural heritage legislation than the NT Act.
  5. Adoption of vision statement Agreed in principle. The Government has noted that some of the recommendations in the ‘Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia’ are outside the Australian Government’s responsibilities. However, the Government supports the vision in principle and is taking its findings into account in its work to reform heritage protections.
  6. Cultural heritage truth telling model Agreed. The Australian Government has committed to truth-telling as an integral part of implementing the Uluru Statement from the Heart in full. As part of that commitment, an independent Makarrata Commission will be established to oversee a national process for agreement-making and truth-telling in partnership with First Nations communities and other levels of government.
  7. PBC funding: The Government has responded to Recommendation 7 into groups of its sub-recommendations.
    • Establishment of an independent fund – Agreed in principle. The Government will consider how government, proponents and industry can provide additional funding and contributions to PBCs through the establishment of an independent fund.
    • Greater transparency and accountability regarding decision-making processesAgreed in principle. The Government has agreed that should wider consultation requirements be mandated for PBCs, that it will review any funding agreements and guidelines in light of these new obligations.
    • Public reporting on section 18 permit reviews – The Government has noted that this recommendation concerns Western Australian legislation, but is committed to working with states and territories to improve protections and deliver greater consistency.
  8. PBC transparency and accountability regarding consultation Agreed in principle. The Government has recognised that cultural heritage care and concern may extend beyond the First Nations group with legal responsibility for it under state and territory legislation, including where the responsible group is a PBC. The Government has stated that it will consider this recommendation through the cultural heritage reform work that is currently being undertaken.

The Commonwealth also addressed the recommendations set out in the interim report. However, these recommendations were either noted as being directed at persons or entities other than the Commonwealth Government, or were addressed by the Government as part of its response to the Final Report.

What does the response mean?

The report signals the potential for significant reform in the regulation of the protection of Aboriginal and Torres Strait Island heritage at the Commonwealth level. The timing of the reform and the extent of reform is currently unknown pending the further investigations outlined above. It also remains to be seen how reform at a Commonwealth level will interplay with legislative reform at the State and Territory level, for example the new Aboriginal Cultural Heritage Act 2021 (WA).  It is clear that the current Commonwealth Government will seek to play a greater role in managing impacts upon Aboriginal cultural heritage. Combined with touted anticipated environmental legislative reform and significant developments and expectations relating to consultation, project proponents should expect far greater scrutiny from regulators in this space.

For further information please contact Melanie Debenham or Naomi Hutchings.

Melanie Debenham
Melanie Debenham
Partner, Perth
61 8 9211 7560
Naomi Hutchings
Naomi Hutchings
Special Counsel, Perth
61 8 9211 7795