The right to enjoy cultural heritage and Australian Indigenous cultural heritage legislation

1.  Introduction‍

On 24 May 2020, as part of the expansion of its Brockman 4 Mine, the Rio Tinto Corporation destroyed the Juukan Gorge in the Pilbara region of northern Western Australia, a site rich in Aboriginal cultural heritage, located on the lands Puutu Kunti Kurrama and Pinikura (PKKP) people.This included material evidencing continual human occupation of the area for over 46,000 years. Subsequent evidence showed that Rio Tinto investigated several options for the expansion of the mine. The option that included the destruction of Juukan Gorge generated an additional revenue of $A135m over the other options evaluated. Rio Tinto has a global annual revenue of $A43.165b.

The destruction was authorised under the Aboriginal Heritage Act 1972 (WA) and did not breach an Indigenous Land Use Agreement under the Native TitleAct 1993 (Cth) between Rio Tinto and the PKKP people. No application for protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was made in relation to the destruction.

Despite the apparent legality of the action, the destruction of Juukan Gorge caused outrage both nationally and internationally. It was condemned by politicians from both sides of politics. The Australian Senate established a parliamentary inquiry to be undertaken by the Joint Standing Committee on Northern Australia. The senior leadership of Rio Tinto apologised for the action and instigated a review of its actions headed by a prominent non-executive board member. Large institutional investors such as the global fund manager Aberdeen Standard Investors and superannuation funds Australian Super, HESTA and the British public sector fund group, the Local Authorities Pension Fund Forum, all announced they were reviewing their investments in Rio Tinto.¹ Ultimately the Rio Tinto Board dismissed the company’s Chief Executive Officer and other relevant senior executives in response to the incident.

The lawful destruction of Juukan Gorge tragically serves to highlight an apparent disjuncture between domestic Australian Indigenous cultural heritage legislation and contemporary discourse regarding the nature, content and even existence of a collective human right to enjoy cultural heritage. Of course,this disjuncture is not unique to Australia. Many First Nations peoples globally have articulated the tragic inadequacy of municipal Indigenous Cultural Heritage (ICH) legislation in the face of the demands of the resources and other industries.

This is true also in Nordic countries. The three Nordic countries with Sami populations endorsed the (non-binding) United Nations Declaration of theRights on Indigenous Peoples² (UNDRIP), however municipal ICH legislation in these countries does not reflect the commitments contained in UNDRIP. This is so in respect of Norway - in which the Act Concerning the Cultural Heritage³ and the Finnmark Act⁴ provide some level of protection of ICH but not to the standard expected by UNDRIP - but more so in both Sweden and Finland without equivalent municipalI Cultural Heritage legislation affording protection and rights in respect of ICH. These deficiencies highlight the significance of an examination of legislation and efforts towards legislative reform in other, non-Nordic, jurisdictions.

The discourse regarding the collective human right to enjoy cultural heritage is well-travelled but inconclusive. Inevitably, before one can arrive at specification of the content of such a collective human right the issues examined in the discourse will necessarily traverse several incidental matters. These include: the development of the recognition of enjoyment of cultural heritage as a human right; the notion of collective human rights; the identity of the collective holding the rights; and the juxtaposing of an individual right to enjoy cultural heritage against a collective right. However, the discourse must also extend further to require consideration of the development of the meaning of the terms: ‘culture’, ‘heritage’ and the composite term ‘cultural heritage’. The contextualisation of this discourse within the specific realm of Indigenous Cultural Heritage adds a particular and additional dimension to the discourse on the content of such a right.

The purpose of this paper is not to enjoin the theoretical narratives around such a right but rather to attempt a very limited and practical contribution to the development of the field. That contribution is an examination of the extent of recognition of a collective right to enjoy ICH in national and sub-national Australian law with a particular focus on ICH legislation relevant to physical project approval (as opposed to legislation dealing with intangible ICH unrelated to land-based projects). To achieve this specific purpose, however, it is necessary to devote some attention to reviewing the current literature regarding the content and definition of the right to enjoy ICH in order to identify the extent of this right’s recognition in Australian law.

Accordingly, the paper will proceed in three sections following this introductory section. Section Two reviews the development of the notion of a collective human right particularly in the context of a collective right to enjoy Indigenous cultural heritage. The section identifies relevance of the principle of Free Prior and Informed Consent to the field of ICH. Appropriately given the increasing recognition being afforded to the document, the section closely examines the provisions of UNDRIP as a statement of the contemporary content of the right of Indigenous Peoples to enjoy ICH.

Section Three of the paper utilises the theoretical conclusions reached in the previous sections as basis for an assessment of current Australian ICH legislation.There are nineteen relevant pieces of legislation at a national and sub-national level in Australia. All this legislation is identified.  However, there is a more detailed examination of the national legislation and that applicable in Western Australia (both at the time of the desecration and currently), Victoria and the Northern Territory as examples of different models of legislation. As explained in greater detail in the body of the paper, this selection is deliberate. The Aboriginal Heritage Act 1972 (WA) is representative of much legislation of the period which could be said to have a foundation in western archaeology. This foundation continues to resonate in the current versions of much legislation. This resonance is illustrated by the comparison with the (yet to be commenced) Aboriginal Cultural Heritage Act 2021 (WA). By contrast the Aboriginal Heritage Act 2006 (Vic.) and the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) represent legislation with a foundation more closely connected to a recognition of the land rights of Traditional Owners.

The paper concludes (in Section Four) by suggesting that the stark contrast between the recognition of the right to enjoy ICH as understood under international norms and the realisation of this right as embodied in Australian domestic law underpins an urgent need for legislative reform in this area. The conclusion notes the recommendations of the Joint Standing Committee on Northern Australia inquiry in this regard. It also particularly highlights the advocacy of First Nations Groups toward this end.

2.    Indigenous Peoples and rights to enjoy cultural heritage

General Principles

A right to enjoy cultural heritage is a contested notion at many levels. At one level the role of the state in determining what constitutes cultural heritage⁵ and what consequences flow from such a designation is in contest with the private property rights of the owner of the material said to constitute cultural heritage.⁶ The process of determination by the state may also be contested. As Xanthaki describes it:

‍… usually these choices are left to the elites of each section of the population, either the elites of the community itself or of the elite in the state structure. Very often the ‘experts’ who decide what needs to be preserved and what not, at times without even consulting and getting the agreement of the community.⁷

At another level the nature of a “right” to enjoy cultural heritage at international law is also the subject of contest. Is such a right an individual right, an individual right enjoyed in the company of others or a collective right?⁸

These contests exist in relation to a general right to enjoy cultural heritage. However, the application of those general principles in the context of Indigenous Peoples raise specific issues which will be briefly considered.

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Collective Indigenous Rights

A key element of collective rights is the nature of the collectivity. In the jurisprudence emanating from Committee on Economic, Social and Cultural Rights (CESR) regarding the right of everyone to take part in cultural life there is reference to the “community or group”;⁹ in the equivalent Human Rights Committee (under the International Covenant on Civil and Political Rights) jurisprudence regarding Article 27 – (the Rights of Minorities)there is reference to “minority group.”¹⁰

There is a need for clarification of these terms in the context of the right of Indigenous Peoples to enjoy cultural heritage. Before considering the relevant provisions of UNDRIP it is useful to consider other relevant authority.

The UN High Commissioner on Human Rights (UNHCHR) notes of this matter:

There is no singularly authoritative definition of indigenous peoples under international law and policy, and the [UNDRIP] does not set out any definition. In fact, its articles 9 and 33 state tha tindigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned, and that they have the right to determine their own identity.¹¹

The International Labor Organisation’s Indigenous and Tribal Peoples Convention(No. 169)¹² (ILO Convention 169) at article 1 does provide the following definition of Indigenous and Tribal Peoples:

1. ‍… (a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
2. Self-identificationas indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

The UNHCHR also refers to the work of Martínez Cobo who suggests the following additional indicia:¹³

• Historical continuity with pre-invasion and/or pre-colonial societies that developed on their territories;
• Distinctiveness;
• Non-dominance; and,
• A determination to preserve, develop and transmit to future generations their ancestral territories and identity as peoples in accordance with their own cultural patterns, social institutions and legal system.

Armed with these general definitions of the term “Indigenous Peoples”, and noting the significance of collective self-identification within these, it is also important to identify why cultural heritage has a particular importance to Indigenous Peoples. While there is much written on this topic, Lenzerini¹⁴ provides an elegant and succinct summary:

… cultural heritage represents an essential part of the cultural identity of most indigenous peoples, who hold with their heritage a spiritual — more than material — relationship. Given the holistic perspective characterizing indigenous peoples’ conception of life — according to which a cosmic order is guaranteed through living in harmony with nature and all other existing beings — their cultural heritage defines their distinctive identities as peoples. Depriving indigenous peoples of their cultural heritage, therefore, does not simply mean stealing their material property but can also mean mutilation of an element of their belief system essential to their existence.

Three matters should be apparent from this preliminary discussion. First the nature of Indigenous Peoples distinct from other national minorities. Second, the significance of self-identification in the definition of Indigenous Peoples. Third, the central role of cultural heritage in community identity and existential continuity as a Peoples.

With these matters identified, it is appropriate to examine how they are dealt with in relevant international instruments. To commence with the ILO Convention (169). The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)¹⁵ provides a valuable summary:

Drawing attention to the distinctive contributions of indigenous peoples to the cultural diversity of humankind (preamble), the Convention requires Governments to promote and safeguard the cultures of indigenous peoples through special measures (arts. 2 and 4), and to recognize and protect their cultural values and practices (art. 5). Governments are required to respect and safeguard the cultural and traditional values of indigenous peoples and (art. 13) their use and management of the land and natural resources (arts. 14 and 15), and ensure that the traditional activities of indigenous peoples are strengthened and promoted (art. 23). Governments are required to consult with and ensure the effective participation of indigenous peoples at all levels of decision-making in political, legislative and administrative bodies and processes which may affect them directly, including their cultural development, and ensure that studies are carried out to assess the cultural, inter alia, impact of development activities on indigenous peoples (arts. 6 and 7).

It can be seen that articles 2, 4, 5, 13, and 23 go directly to matters of cultural protection and promotion. Articles 6, 7, 14 and 15 are also relevant to the enjoyment of cultural heritage but in the particular context of the impacts of development activities. These two aspects of the cultural heritage enjoyment and protections can also be seen in UNDRIP.

Before detailing the relevant provisions of UNDRIP three matters should be noted. First, it is broadly recognised that UNDRIP does not impose new international legal obligations on states. Rather, it restates existing international legal obligations but framed in the specific context of Indigenous Peoples.¹⁶ Second, The UNDRIP as a General Assembly resolution does not by virtue of its status, have binding effect.¹⁷

Third, UNDRIP overwhelmingly sets out the rights of Indigenous Peoples. This illustrated by the fact that a number of UNDRIP articles do make specific reference to Indigenous individuals.¹⁸ These articles aside, the rights set out in UNDRIP are, in the language described above, “collective rights”. That is, in terms of the debate described by Dwight Newman¹⁹ these are rights held by “indigenous communities themselves” not by “individuals in community with others”. Davis notes an additional complication around this issue arising from “the lack of consensus among Indigenous groups themselves on how to balance Indigenous rights with other human rights.”²⁰ With these preliminary matters identified it is timely to broadly describe the UNDRIP provisions in question.

UNDRIP Articles 11, 12,13, 14, 15, 25, 31, and 32 are relevant provisions to a general right to enjoy cultural heritage.²¹ Article 40 (dispute resolution) is also of relevance.

Aside from these rights dealing directly with matters of culture and cultural heritage, Article 32 addresses ‘the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.’ At article 32.2 the Declaration sets out:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources particularly in connection with the develop­ment, utilization or exploitation of mineral, wa­ter or other resources.” (Emphasis added)

Before considering the relevance of Free Prior and Informed Consent (FPIC) to the enjoyment of cultural heritage it should be noted that Article 18 informs the reference to “representative institutions” in Article 32. Article 18 provides for “the right to participate in decision making in matter which would affect their rights through representatives chosen by themselves in accordance with their own procedures…”.

As illustrated by the description of the desecration of Juukan Gorge which commenced this discussion, the ability to control projects affecting land in connection with the development or exploitation of mineral resources can be crucial to a right to enjoy cultural heritage. In turn this suggests that domestic legal regimes regarding control and management of Indigenous (and other) lands are also relevant to a right to enjoy cultural heritage. The general issue of “land rights” is addressed in article 26. The significance of property in land of course highlights the significance of the proposition put forward by Joseph Sax;²² that individual (or collective) property regimes are a major component in the management of (certainly tangible) cultural heritage. This is especially so in the case of ICH which, if it is not on Indigenous lands, will be located (and thereby usually controlled by) on settler-lands from which Indigenous owners have been dispossessed.

In addition to article 32.2 the FPIC formulation is also used in articles 10, 11, 19, 28 and 29. Considerable theoretical debate exists around the theoretical foundation of FPIC. These are described by Andrew Erueti.²³ The author describes the development of UNDRIP as influenced by those Indigenous representatives from “the North” (primarily Canada, Australia, New Zealand and the United States – CANZUS) and those from “the South” Africa, Asia and Latin America. The North pursued rights based in “sovereignty”; the South had a greater focus on non-discriminatory human rights approaches. He states:

The political narrative of the declarations indicates there are two forms of argument underlying the indigenous rights in the declaration, one based on human rights and the other on decolonization.²⁴

To Erueti, the rights contained in Articles 26 and 32 to control the natural resources located in their lands and for these not to be developed without the Free, Prior and Informed Consent of the relevant Indigenous peoples lie in the decolonization  model and informed not by the human rights  model but rather “…is primarily directed at the negotiation between two nations of their terms ofco-existence.”²⁵ To Erueti this approach allows for a “stronger reading” of rights such as those contained in Articles 26 and 32. It arguably also highlights the central role of the Indigenous community in identifying material deemed ‘cultural heritage’ as opposed to the state endorsed “experts” as described by Xanthaki.²⁶

Despite this ongoing debate, on either construction it is apparent that the rights in respect of Indigenous lands are collective rights in the sense described above. It can be seen then that while Indigenous Peoples’ rights to enjoy cultural heritage are particular, they can still be located within a general model of collective rights as discussed in the previous section.

Having thus considered the particular nature of Indigenous Peoples’ rights to the enjoyment of cultural heritage; it remains to examine the application of these various bases to a right to enjoy cultural heritage in Australian legislation which is the primary task of this paper.

3.   Australian Indigenous Cultural Heritage Legislation

Before commencing examination of ICH legislation, it is useful to note the Australian domestic constitutional framework. Under Australian constitutional arrangements both the federal (Commonwealth) parliament and the sub-national (state and territory) governments can pass laws pertaining to Indigenous (in Australia - Aboriginal and Torres Strait Islander) Peoples. However, Commonwealth law will prevail over any inconsistent state or territory law to the extent of any inconsistency. In the case of ICH legislation both the Commonwealth and each of the states and territories have passed legislation. In addition, there is also Commonwealth legislation relating to land rights relevant to ICH (the Native Title Act 1993 (Cth) (NTA)) and Commonwealth legislation relating to land rights applying only to the Northern Territory (the Aboriginal Land Rights (Northern Territory) Act 1976(Cth.) (ALRA)). While there are some pieces of state and territory landrights legislation, these are not directly relevant to this discussion.

This exception noted, there are eighteen pieces of legislation relevant to ICH. Six of these are Commonwealth legislation as follows:

• ‍Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
• ‍Environment Protection and Biodiversity Conservation Act 1999 (Cth)
• ‍Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
• ‍Protection of Movable Cultural Heritage Act 1986 (Cth)
• ‍Underwater Cultural Heritage Act 2018 (Cth)
• ‍Native Title Act 1993 (Cth)

State and Territory Legislation

• ‍Heritage Act 2004 (ACT)
• ‍National Parks and Wildlife Act 1974 (NSW)
• ‍Aboriginal Languages Act 2017 (NSW)
• ‍Northern Territory Aboriginal Sacred Sites Act 1989 (NT)
• ‍Aboriginal Cultural Heritage Act 2003 (Qld)
• ‍Human Rights Act 2019 (Qld)
• ‍Torres Strait Islander Cultural Heritage Act 2003 (Qld)
• ‍Aboriginal Heritage Act 1988 (SA)
• ‍Aboriginal Heritage Act 1975 (Tas)
• ‍Aboriginal Heritage Act 2006 (Vic)
• ‍Charter of Human Rights and Responsibilities Act 2006 (Vic)
• ‍Aboriginal Heritage Act 1972 (WA)
• ‍Aboriginal Cultural Heritage Act 2021 (WA).

Clearly, given this volume of legislation this discussion will not be able to review each law. Rather there will be some comment on the general nature of much of this legislation and a more detailed analysis of selected pieces of legislation.

State and Territory Legislation – general comments

Smith²⁷ discusses the development of Aboriginal heritage legislation in NSW, Victoria and Tasmania that took place in the late 1960s and 1970s.²⁸  While not the subject of Smith’s analysis, the Aboriginal Heritage Act 1972 (WA), to be examined in closer detail below, is legislation of this era.

Smith notes that this period was characterised by two relevant contemporaneous developments. First, the advent of processual archaeological discourse that sought to portray a new university trained “professional” archaeologist, distinct from the previous amateur manifestations. The new archaeologists sought to control through regulation the practice of archaeology in the country and were active in seeking the creation of legislation to facilitate this regulation.

The second feature was the development of an Aboriginal political activism. As Smith notes:

Aboriginal people were concerned in the late 1960s and early 1970s to recapture a pride in their identity and were actively reshaping Aboriginality as part of a politicised cultural revival. Cultural heritage was important in symbolising and providing material links with Aboriginal cultural identity. Issues of identity became central to negotiations with governments over the legitimacy of Aboriginal claims.

…

Further, Aboriginal people used claims to land and material culture as crucial strategies to forge new cultural and political identities. Increasingly assertive claims were made via the Land Rights movement and the ethics of the collection practices of museums and archaeologists were called into question.²⁹

In the context of dealing with Indigenous political aspirations then, Smith suggests, the development of archaeological based ICH legislation (such as the ICH provisions of the National Parks and Wildlife (Amendment) Act 1969 (NSW)) had significant implications. She goes on to describe these as follows:

There is a very real sense that the archaeologists in the 1960s perceived themselves as dealing with a ‘fossilised’ past … The perception of a ‘vanished people’ is embedded in the use of the term ‘relics’ specifically as it implies that Aboriginal heritage no longer exists within the contemporary cultural and social contexts.

… the term relic also emphasises the physicality of Aboriginal heritage and operates to deny the non-material aspects of cultural heritage. What ultimately is being protected by these Acts is archaeological data and not Aboriginal ‘heritage’ as such.³⁰

Smith’s suggestion is that the relegating of ICH to archaeology which is a feature of the legislation she examines was, in part, an attempt to deny the contemporary existence of Indigenous culture and thereby also broader Indigenous aspirations – including those as to land rights.

Within Smith’s analysis can also be seen the process described by Xanthaki, referred to above, of state ‘experts’ assuming the role of the determination of what is and is not Indigenous cultural heritage worthy of legislative protection.

As noted in the introduction to this paper this ‘archaeological privileging' is a feature of much legislation of this period across Australia. The NSW and Tasmania legislation continue to incorporate this approach. So too did the Aboriginal Heritage Act 1972 (WA) (WAHA) that authorised the destruction of Juukan Gorge. In 2021 the WA Parliament passed new legislation (the Aboriginal Cultural Heritage Act 2021 (WA) (WACHA)) that will repeal the WAHA. However, at the time of writing this new legislation had not yet commenced.

Despite its imminent repeal the WAHA stands as a relevant illustration of the structure and concepts of legislation of the period. For this reason, the WAHA will be utilised for the purposes of analysis in this section.

A second era in State and Territory ICH legislation commenced with the decision of the High Court of Australia in Mabo & Ors v Queensland & Ors (No 2) (1992) 175 CLR 1 (Mabo) which recognised for the first time in post-colonial Australian history the possible ongoing existence of Indigenous interests in land. The example of this era of legislation that will be considered in the Aboriginal Heritage Act 2006 (Vic) (VAHA) the most recent of the post-Mabo ICH legislation. The paper will also draw comparisons between the VAHA and the WACHA. The VAHA was selected for the purposes of analysis over the (also post-Mabo) Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Islander Cultural Heritage Act 2003 (Qld) as the VAHA was enacted subsequently to, and informed by, the Queensland legislation and constitutes a clearer example of post-Mabo legislation.

Consideration will also be given to the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (NTASSA). This legislation, although pre-dating Mabo, dovetails with ALRA, the 1976 Commonwealth legislation establishing a land rights regime of application only in the Northern Territory. Many of the concepts incorporated in ALRA and the NTASSA were subsequently incorporated into UNDRIP.

Each of these pieces of legislation deals with a range of ICH related matters. For example, the VAHA legislation establishes structures and processes around secret and sacred objects, Aboriginal ancestral remains and intangible Aboriginal heritage. These aspects are beyond the scope of this discussion the focus of which is only upon the processes relevant to authorising developments on land which may damage ICH as was the case in Juukan Gorge. However, before considering the state and territory legislation it is important to appreciate the role of Commonwealth legislation.

Commonwealth Legislation

Given the focus of this discussion on tangible, land-based ICH, the most relevant piece of Commonwealth legislation is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSHIPA) and the NTA. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) contains provisions relating to world heritage properties (under the 1972 UNESCO Convention) and “national heritage places”. While there are circumstances that this legislation can have relevanceto ICH³¹ they are limited and thus this legislation will not be considered in detail.

The general structure of ATSIHPA is that the Minister (currently for the Environment) may receive an application (“orally or in writing”) “by or on behalf of an Aboriginal or group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration”.³² A 30-day emergency declaration under s 9 can be made if the Minister is satisfied the area is indeed a significant Aboriginal area and under serious and immediate threat of injury or desecration. A potentially ongoing s 10 declaration can be made if the Minister is again satisfied the area is a significant Aboriginal area and under threat of injury or desecration and has received and considered a report going to the various matters set out in subsections (3) and (4). Contravention of the provisions of a declaration is an offence.³³ Declarations are disallowable by parliament,³⁴ and can only be made after consultation with the relevant state or Territory Minister.³⁵ Under s 12 a declarationcan also be made regarding a significant Aboriginal object.

ATSIHPA is a measure “of last resort”. That is, it is intended to be legislation that is deployed only when relevant state and territory legislation has not been effective in addressing Indigenous concerns regarding the injury or desecration of an Aboriginal object or area of significance.³⁶ This fact is also apparent from s 7 of the Act which allows for the concurrent operation of state or Territory law where possible. It is also apparent from the basic structure of the legislation. This is found in ss 9, 10 and 12 which allow Aboriginal andTorres Strait Islander individuals (only) to make an application for anemergency (s 9) or ongoing (s 10) declaration for protection in relation to an area or object (s 12). The declaration is dependent upon the Minister forming a positive view in relation to the significance of the object or place under Aboriginal or Torres Strait Islander tradition and even if a positive view is reached is discretionary (s 9(1)). This structure which is reminiscent of a “general heritage model”³⁷ or “declaration model” of heritage legislation which requires the listing of a location in order for statutory protection to be afforded.

This approach can be contrasted with the “legislative model”, more common in state and territory ICH legislation (discussed immediately below), which operates by definition and proscription. That is, the status of a site or area of significance is derived from satisfaction of a statutory definition and interference with that site is proscribed unless authorised.³⁸ The significance of the distinction in this context is that the use of the declaration model requires some positive action to be taken before the protective measures of the legislation are engaged, the definition and proscription model operates passively and requires positive action only if interference with a site (or object) is contemplated. This emphasises the notion that ATSIHPA, is intended as a “last resort” measure.

The NTA is also relevant to ICH matters. At common law native title rights and interests in Australia exist in recognition of the continuing (since the assertion of British sovereignty) traditional laws and customs of Indigenous peoples as these relate to land. It is thus necessary for Indigenous peoples to show a “traditional connection” to the land in question. Where this can be demonstrated (to the evidential satisfaction of the Federal Court of Australia) the rights and interests in land can range from a limited “exclusive possession” to a right to carry on limited traditional activities on the subject land. The extent of rights recognised is dependent on the nature of land interests granted by the Crown since the assertion of British sovereignty.³⁹ The NTA builds on this common law basis by also granting certain procedural rights to native title holders or plausible native title claimants to negotiate with proponents of significant land developments (including mining). The outcome of these negotiations can result in agreements containing certain limited protections for ICH.⁴⁰ However, if there is no resolution coming from the negotiations the proponent can seek an order from an administrative tribunal authorising the development. In over 98% of cases the relevant tribunal has authorised the proposed developments.⁴¹ In the event the matter is determined by the tribunal, Indigenous people are denied the opportunity to receive “royalty equivalent” benefits from the project.⁴²

Where a native title determination application is made by the Federal Court recognising the existence of native title rights in subject land those rights will be held or managed by a Prescribed Body Corporate (PBC) constituted by the native title holders and incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). A PBC can thus be seen as a “representative institution” under UNDRIP Article 18.

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Selected State and Territory Legislation

WAHA, VAHA, NTASSA and the WACHA are all based on the “legislative model” mentioned above. That is in all this legislation, interference (harm or damage) with Aboriginal cultural heritage (as defined) is made unlawful unless the interference is the subject of a legislative authorisation.⁴³ The key distinctions between these laws lie in:

• the scope of the definition of Aboriginal cultural heritage;
• the basis upon and process by which an interference authorisation can be granted; and
• the identity of the body empowered to grant the authorisation.

These distinctions are also relevant when analysing ATSHIPA. It is these elements that will form the basis of this analysis.

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Definition of Aboriginal cultural heritage

Under s 5 of the WAHA the Actr elevantly applies to:

any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present; [and] any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent;

The more recent WACHA in s 12defines Aboriginal cultural heritage as meaning:

…the tangible and intangible elements that are important to the Aboriginal people of the State, and are recognised through social, spiritual, historical, scientific or aesthetic values, as part of Aboriginal tradition.

In s 11 “Aboriginal tradition” is defined as meaning:

(a) the living, historical and traditional observances practices, customs, beliefs, values, knowledge and skills of the Aboriginal people of the State generally, or of a particular group or community of Aboriginal people of the State; and

(b) includes any such observances, practices, customs, beliefs, values, knowledge and skills relating to particular persons, areas, objects or relationships.

The reference to intangible elements in the definition of Aboriginal Cultural Heritage in s 12 is somewhat undermined by the definition of "Aboriginal place” also in s 12 as:

an area …in which tangible elements of Aboriginal cultural heritage are present.

The “tangible” requirement in the Aboriginal Place is somewhat modified by the definition of “cultural landscape” also in s 12 which is as follows:

a group of areas … interconnected through tangible or intangible elements of Aboriginal cultural heritage.

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The VAHA has a broader definition of Aboriginal place in s 5:

an Aboriginal place is an area in Victoria or the coastal waters of Victoria that is of cultural heritage significance to Aboriginal people generally or of a particular community or group of Aboriginal people in Victoria.

The definition is expressed to include land, waters, natural features and landscapes, and archaeological sites. Cultural heritage significance is earlier (s 4) defined to include:

archaeological, anthropological, contemporary, historical, scientific, social or spiritual significance; and significance in accordance with Aboriginal tradition:

Finally, “Aboriginal tradition” is defined (also s 4) as:

the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

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The Victorian definitions are reminiscent of the definition of “sacred site” and “Aboriginal tradition” utilised in the NTASSA which in turn picks up the definition used in ALRA. These definitions are contained in ALRA s 3 and are as follows:

Sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.

Aboriginal tradition is defined as:

…the body of traditions, knowledge, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people; and any such traditions, knowledge, observances, customs or beliefs relating to particular persons, areas, objects or relationships.

Notable in regard to each of these definitions are the references to, broadly defined, “Aboriginal tradition”. The WAHA does not define this term. The scope of the operation of these Acts then has the potential to give effect to UNDRIP articles 11, 12, 13, 15 and 25. It is the operational aspects of the legislation that will determine whether this potential is realised.

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Basis and process of interference authorisation

In WAHA an “owner of land” can give notice to a committee established under the Act that they wish to use the land in a way which may cause the (s 17) offence of damaging an Aboriginal site. The committee is comprised of certain government officials and other persons appointed by the Minister (s 28). The Ministerial appointments are required to be “experts” and are not required to be Aboriginal people. There are currently ten members of the Committee, five of whom are Aboriginal people and three of which are the ex-officio government officials. The committee is obliged to “form an opinion as to whether there is any Aboriginal site on the land, [and to] evaluate the importance and significance of any such site” (s 18(2)) and then provide a recommendation to the relevant Minister as to whether the land use should be allowed. The Minister has discretion to accept or not, or subject to conditions the recommendations. The landowner can seek review of the Minister’s decision to an administrative tribunal.

In the WACHA no authority to interfere is needed if the proposed activity is defined as “exempt” or a “Tier 1” ("involving no or minimal ground disturbance”) activity (s 100) and “due diligence” (s 102) has been carried out. Damage to Aboriginal cultural heritage (ACH) arising from these activities will not constitute an offence under the Act.⁴⁴

A Tier 2 Activity (low level ground disturbance) or a Tier 3 Activity (moderate to high level ground disturbance)(s 100) requires an ACH permit or ACH management plan.⁴⁵

An ACH permit is granted by the ACH Council. The ACH Council is comprised of between 6 and 11 people all of whom are appointed by the Minister and half of whom must be Aboriginal (s 21). An applicant for an ACH permit must give notice of their application to any native title holders or applicants and (to the extent they are different) to the Local Aboriginal Cultural Heritage Service (LACHS). The LACHS for an area is appointed by the ACH Council in accordance with criteria contained in s 39. While in the usual course a PBC under the NTA would satisfy these criteria, that decision is ultimately up to the ministerially appointed ACH Council.

The LACHS and any other notified party can make submissions to the applicant and the ACH Council in relation to the application but, under the terms of WACHA s 120(1), it must grant the permit if satisfied that steps have been taken to minimise harm to ACH⁴⁶ and the application is procedurally correct. An applicant can ‘appeal’ to the Minister if the ACH Council refuses a permit (s 131). Aboriginal owners of cultural heritage have no similar appeal right against a decision to grant an ACH permit.

An ACH management plan is required for Tier 3 activities (moderate to high ground disturbance). The management plan must inter alia set out the extent to which harm to ACH is authorised and how the proposed activity will be managed, where possible, to avoid, or minimise, the risk of harm being caused.⁴⁷ The ACH management plan has a potentially different approval process to an ACH permit. Where a LACHS is appointed a proponent (and the LACHS) must use their best endeavours to reach an agreement regarding the ACH management plan within a prescribed period.⁴⁸ If agreement is reached the management plan must still be approved by the ACH Council (s 147). The ACH Council may approve the management plan if satisfied that informed consent⁴⁹ was granted to the plan and if satisfied with its content (s 151). In the event the ACH Council refusesto approve a management plan, the proponent can ‘appeal’ to the Minister (s155).

In the event there is no agreement reached by a proponent and a LACHS (or other native title party) a proponent can seek to have the Minister, acting after having considered the advice of the ACH Council, nevertheless, approve the management plan (s 157).

There is no equivalent ability for Aboriginal owners of cultural heritage to appeal a decision of the Minister to approve a management plan authorising harm to their cultural heritage.

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In the VAHA authorisation to interfere with Aboriginal cultural heritage may be sought by any persons who proposes to undertake any works or development of land (s 44). An authorisation is only required to be sought in certain circumstances (s 46 – essentially significant works or works in sensitive areas) however interference with Aboriginal cultural heritage in any circumstances without an authorisation is an offence (ss 27-29). The authorisation is granted by a registered Aboriginal party (RAP) or by the relevant government department where there is no relevant RAP.

A RAP is a corporation comprised of and representative of Traditional Aboriginal Owners relevant to the area of its appointment (s 150). There are currently 11 RAPs appointed with respect to 75% of the Victorian land area. A RAP is appointed by the Victorian Aboriginal Heritage Council (VAHC). The VAHC is a statutory body corporate comprised of up to 11 Victorian Traditional Aboriginal Owners appointed by the relevant Minister (ss 130, 131). Where a PBC exists the VAHC must appoint the PBC as a RAP for its relevant area (s151(2)).

A RAP (or the department if there is no RAP) can only refuse to grant an authorisation if the management plan accompanying the application is technically inadequate or does not include appropriate measures to “minimise” harm to Aboriginal cultural heritage(ss 61, 63). A proponent aggrieved by a decision not to grant an authorisation can seek review at an administrative tribunal (s 116). There is no provision for a RAP to refuse to approve an authorisation on the basis that the proposed harm while reasonably minimised still causes harm to Aboriginal Cultural Heritage that is unacceptable to the RAP.

The Charter of Human Rightsand Responsibilities Act 2006 (Vic) (Charter) at s 28 provides:

It is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Section 19(2) of the Charter specifically addresses Indigenous cultural rights and states:

Aboriginal persons hold distinct cultural rights and must not be denied the right, with other members of their community—

(a) to enjoy their identity and culture; and

(b) to maintain and use their language; and

(c) to maintain their kinship ties; and

(d) to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

Notable in this provision is the formulation of individuals “with other members of their community”.  It would appear a RAP, and certainly the department, in considering an application for an authority to interfere with Aboriginal cultural heritage may be obliged to consider an individual cultural right. Whether this right can be asserted as against the Indigenous community’s views is at this stage uncertain.

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The structure of the NTASSA is similar to that of the VAHA. Under this legislation any person “who proposes to use or carry out work on land” (s 19B) may apply for an authorisation. The application is made to the Aboriginal Area Protection Authority (AAPA). AAPA is an independent statutory body corporate comprised of 12 “custodians of sacred sites” nominated by the Aboriginal Land Councils established under ALRA (ss 5 and 6). The (four) Aboriginal Land Councils are independent statutor yauthorities elected by the Traditional Aboriginal Owners in their respective regions of the Northern Territory.⁵⁰ An ALRA Aboriginal Land Council would satisfy the definition of “representative institution” under UNDRIP Article 18.

AAPA may grant an authorisation, after consultation with custodians of any sacred sites affected by the proposals, in accordance with any agreement reached by the proponent and those custodians or where: “the work or use of the land could proceed or be made without there being a substantive risk of damage to or interference with a sacred site on or in the vicinity of the land” (s 22).

At this level then the NTASSA provides the only example of legislation in Australia where interference to Aboriginal cultural heritage (where constituted by sacred sites) cannot occur unless this is pursuant to an agreement with Traditional Owners. This achievement is somewhat curtailed by the existence of ministerial review procedures contained in ss 30– 32. It is understood these provisions have never led to a reversal of an AAPA decision to refuse to grant a certificate.

Notably the NTASSA at s 46 provides that “Aboriginals shall have access to sacred sites in accordance with Aboriginal tradition…”. This is the only legislative guarantee of access to ICH (to the extent it constitutes a “sacred site”) in the legislation reviewed.

One final aspect of note in relation to the authority to interfere in the Northern Territory regime is that the provisions of NTASSA extend only to ICH within the definition of Aboriginal sacred sites. ICH not comprised in a sacred site is either regulated under the Heritage Act 2011 (NT) (HA) or not the subject of any regulation at all. Decisions under the HA are made by a Heritage Council comprised of ten ministerial appointees only one of which need be Aboriginal (HA s 128).

Identity of the body empowered to grant the authorisation to interfere with ICH

This issue has been largely addressed in the previous section and need only be briefly recapped here.

• Under the WAHA an authorisation to interfere with ICH, where it is necessary, is granted by the Minister taking into account the advice of a ministerially appointed Council.
• By contrast pursuant to the new WACHA regime an authorisation to interfere with ICH, where it is necessary, can be granted by a LACHS for a Tier 3 activity. If the LACHS refuses consent, the authorisation is granted by the minister — taking into account the advice of a ministerially appointed Council. The Council also approves authorisations to interfere with ICH pursuant to a Tier 2 activity. In short, Traditional Owners are empowered only to consent to interference with activities that will cause major ground disturbance. They are not empowered to refuse consent.
• In Victoria, under the VAHA, unless proposed works are significant, no authorisation is required — although damage to ICH without an authorisation will still constitute an offence. The RAP can grant an authorisation to interfere in relation to significant works. The RAP can only not approve the authorisation if there are insufficient proposed actions to minimise (as opposed to prevent) damage to ICH. If no RAP is appointed the authorisation, where required, is granted by the bureaucracy. Thus, in Victoria Traditional Owners are empowered to consent to significant interference with ICH but in only very limited circumstances to refuse consent.
• In the Northern Territory, but only in relation to sacred sites under the NTASSA, the AAPA which is appointed by UNDRIP Article 18 representative institutions, can grant an authority to interfere only if there is no “substantive risk of damage to or interference with a sacred site” (s 22(1)). If there is such a risk only the local custodians of the scared site can consent to the grant of the authorisation. They can also refuse to grant consent. However, these decisions are the subject of Ministerial review provisions. Noting these review provisions (and the limitations in the definition of sacred site) the NTASSA is the only that can be said to give effect to the principle of FPIC which is central to many of the UNDRIP ICH provisions.

Consideration of Legislation in relation to approaches to the enjoyment of cultural heritage

The first point that is apparent from the foregoing review is that the role of private property in defining the enjoyment of cultural heritage as described by Sax⁵¹ is significant. In each of the regimes described above, it is the (non-Aboriginal) owner of the land upon which ICH is located that has the prerogative to initiate the process of seeking authorisation to interfere with cultural heritage. The limited agreement making rights under the NTA do little to modify this conclusion. Further, it is only in the NT that Traditional Owners have a right, as against private property owners, to even access land-based ICH.

Beyond this, the preeminent role of the state (in the form of the Western Australian minister or the ACH Council) is prominent in the WAHA. Despite the potentially broad application of the WAHA apparent from its s 5, it is the advisory committee of experts “form[s] an opinion as to whether there is any Aboriginal site on the land, [and to] evaluate the importance and significance of any such site”. It is for the minister to determine whether, despite the committee’s opinion as to the importance and significance of the site, interference can occur. This is a clear example of the state “property” rights also illustrated by the UNESCO Conventions and discussed above. Completely absent from the WAHA is any influence of the discourse regarding either individual or collective rights in respect of cultural heritage.

The Commonwealth’s ATSHIPA by contrast is more reminiscent of the WAHA. Its application is dependent upon a state (ministerial) declaration as to the significance of cultural heritage and even then, is discretionary.

The VAHA does reveal some influence of this rights discourse. This is manifested by the RAP structure which is central to the operation of the VAHA. A RAP can legitimately be seen as a “representative institution” of the relevant Indigenous community for the purposes of UNDRIP article 32.2 (FPIC) and other aspects of the Declaration.The inclusion of the RAP structure within the VAHA is an acknowledgement of some notion of Indigenous Peoples’ control of their cultural heritage. Balanced against this however is the limited authority given to the RAP. A RAP is notable to determine whether there will be activities that impact on cultural heritage — only to ensure that such activities minimise the harm. That is, a RAP is given limited ability to manage the destruction of its constituency’s cultural heritage. This is still clearly well short of the expectations arising from UNDRIP.

The WACHA, the most recent of the legislation considered, does give some role to organisation that may constitute representative institutions. However, this role is limited to granting consent (but not to refusing consent) to the management of activities that are likely to cause significant damage to ICH. In this respect the WACHA could be seen to have moved from an archaeological conception of ICH and be conceptually closer to VAHA. However the WACHA is less consistent with the UNDRIP articulation of rights to enjoy cultural heritage than the Victorian legislation that preceded it by 15 years.

The NTASSA does constitute a significant recognitionof the UNDRIP articulated rights.⁵² Decisions under the NTASSA are made by a body comprised of nominees of representative institutions in consultation with affected custodians. In addition, local custodians are able to reach independent agreement with proponents independently of the AAPA. Further, in considering whether to grant an authorisation AAPA is required to consider only the risk of damage or interference with the ICH. That is to say APPA can refuse to grant an authorisation if there is a substantial risk of damage or interference (unlike the Victorian minimisation approach). Finally, only the NTASSA ensures Indigenous Peoples’ right of access to cultural heritage located on land.

To the extent possible of legislation dealing with land based cultural heritage (again to the extent this is constituted in a “sacred site”) then the NTASSA does implement the expectation of collective Indigenous rights arising from UNDRIP.

3.   Conclusion

This discussion has attempted to analyse various approaches to the right to enjoyment of cultural heritage. It has suggested that four approaches are apparent from a review of existing literature.These are:

• a private property approach;
• a state property approach;
• an individual rights approach; and
• a collective rights approach.

It then posited that particular Indigenous rights to enjoy cultural heritage as manifested especially by UNDRP are a manifestation of the collective rights model.

Building upon this theoretical analysis, the discussion proceeded to examine four examples of the regimes established by Australian cultural heritage legislation: the Commonwealth’s; Western Australia’s; Victoria’s; and that of the Northern Territory. This examination suggested that the private property approach underpinned each of these regimes. It also indicated that the Commonwealth and Western Australian regimes were operated on a state property basis with no real regarding for collective (or individual) Indigenous Peoples’ rights. It noted that the Victorian regime did manifest some influence from the collective Indigenous rights discourse but that this was very limited; the new WACHA legislation was even more limited. By contrast the regime established in the Northern Territory did incorporate significant recognition of the rights articulated in UNDRIP.

Given the domestic and international condemnation of the inadequacy of Australian ICH legislation arising from the Juukan Gorge desecration in 2020 it is apparent there is a need for thorough reform of Australian ICH legislation to align it with contemporary international expectations.

This need was recognised in the final reportof the parliamentary inquiry established to examine the Juukan Gorge Desecration.⁵³ Recommendation 3 of the Inquiry⁵⁴ was as follows:

The Committee recommends that the Australian Government legislate a new framework for cultural heritage protection at the national level.

• The legislation should be developed through a process of co-design with Aboriginal and Torres Strait Islander peoples.
• This new legislation should set out the minimum standards for state and territory heritage protections consistent with relevant international law (including the United Nations Declaration on the Rights of Indigenous People UNDRIP).

This recommendation echoed many of the submissions made to the inquiry from First Nations Peoples’ organisations to the inquiry. The Commonwealth government responded by participating in the establishment of a partnership with a coalition of First Nations organisations to lead the co-design process in November 2021,⁵⁵ establishing a process of co-design as recommended by the inquiry. The co-design process is expected to lead to legislative proposals being introduced in the Australian parliament in 2023.

Introduction of legislation is however no guarantee of its passage. Previous attempts to reform Commonwealth ICH legislation in 1984, 1998, and 2009 were all unsuccessful. It will be informative to ascertain to what extent the development of international jurisprudence regarding a right to enjoy ICH will assist in the success of the current enterprise. If it does not, then one would expect the widespread international outrage at the destruction of the priceless cultural heritage in Juukan Gorge to continue with greater intensity.

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Footnotes

1. Although, notably, more than two years after the desecration none of these funds actually divested shares in Rio Tinto and in fact the share price has considerably increased.
2. United Nations Declaration of the Rights of Indigenous Peoples GA/res/61/295 Ann.1 (Sept 13, 2007).
3. (Act 9 June 1978 no. 50 - Lov om kulturminner)
4. Act 17 June 2005 No. 85 relating to legal relations and management of land and natural resources in the county of Finnmark (The Finnmark Act) [Lov 17. juni2005 nr. 85 om rettsforhold og forvaltning av grunn og naturressurser iFinnmark fylke (fijinnmarksloven)], For a more detailed analysis of this legislation see Øyvind Ravna, (2017) “Links between Lands, Territories, Environment and Cultural Heritage – The Recognition of Sámi Lands in Norway in Chapter”, in Alexandra Xanthaki, Sanna Valkonen, Leena Heinämäki, and Piia Kristiina Nuorgam (Eds), Indigenous Peoples Cultural Heritage Brill, 2017,175-198.
5. Janet Blake (2000), ‘On defining the cultural heritage’, International and Comparative Law Quarterly, (2000), Vol 49(1), 61-85.
6. The matter is the subject of analysis in Joseph Sax (1990) ‘Heritage Preservation as a Public Duty: The Abbe Gregoire and the Origins of an Idea’, Michigan Law Review (1990) Vol 88 pp 1142 – 1169. See also in Stuart R Butzier & Sarah M Stevenson (2014) Indigenous Peoples’ Rights to Sacred Sites and Traditional Cultural Properties and the Role of Consultation and Free, Prior and Informed Consent, Journal of Energy & Natural Resources Law, 32:3, 297-334, 301.
7. Alexandra Xanthaki (2017), ‘International Instruments on Cultural Heritage: Tales of Fragmentation’, Chapter in Alexandra Xanthaki, et al (2017) above n 4. 3.
8. On this point see for example: Yvonne Donders (2016), ‘Foundations of Collective Cultural Rights in International Human Rights Law’, Chapter (4) in Andrzej Jakubowski (Ed), Cultural Rights as Collective Rights: An International Law Perspective (2016); Kimberley Alderman, (2011), ‘The human right to cultural property’, (2011), Vol 20 (1) Michigan State International Law Review, 69 – 81 particularly 73-76; Frederico Lenzerini (2016), ‘The safeguarding of collective rights through the evolutionary interpretation of human rights treaties and their translation into principles of customary international law’, Chapter (6) in Andrzej Jakubowski (Ed), Cultural Rights as Collective Rights: An International Law Perspective 2016, 133. See also:The Committee on Economic, Social and Cultural Rights (CESR) General Comment No 21 Right of Everyone to Take Part in Cultural Life (n 42) par 9. And HR Comm, General Comment No 23: Article 27 (Rights of Minorities) 8 April1994.
9. The CESR is established under International Covenant on Economic, Social and Cultural Rights above n 8.
10. Above n 8.
11. UN High Commissioner on Human Rights (2013), Indigenous Peoples and the United Nations Human Rights System, Fact Sheet 9/Rev 2 https://www.ohchr.org/documents/publications/fs9rev.2.pdf
12. ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), 72 ILO Official Bulletin 59, concluded 27 June 1989 (entered into force September 5 1991). (“ILO Convention 169”). Unlike UNDRIP the Convention is binding on ILO members (which do not include Australia).
13. UNHCHR above n 10, 2 citing Martinez Cobo (1986) “Study of the problem of discriminationagainst indigenous populations”, E/CN.4/Sub.2/1986/7 and Adds. 1–4. Theadditional Cobo indicia are also consistent with the conclusions of theInternational Law Association (ILA) Committee on the Rights of IndigenousPeoples – see ILA Sofia Conference 2012 Rights of Indigenous Peoples,Final Report at 2. file:///C:/Users/vici73s/Downloads/Conference%20Report%20Sofia%202012.pdf
14. Federico Lenzerini (2016), ‘Cultural Identity, human rights and repatriation of Cultural heritage of Indigenous Peoples’, the Brown Journal of World Affairs,(2016), Vol XXIII (1), 128.
15. A/HRC/EMRIP/2015/2, para 12.
16. S James Anaya, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc A/HRC/9/9 (11 August 2008) 24 [86].  See also the discussion in Megan Davis, below n 17, 26-30.
17. Megan Davis (2012), ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’, (2012) 19 Australian International Law Journal 17. The paper also considers the desirability of striving for binding status for UNDRIP.
18. Specifically, articles 6, 7.1,8.1, 14.2, 17.1, 17.3 and 24.2.
19. Dwight G Newman (2007), ‘Theorizing collective Indigenous rights’, (2007) Vol 31(2) American Indian Law Review, 273 – 289, 276.
20. Megan Davis, above n 17, 32.
21. Article 11 deals with ‘the right to practise and revitalize theircultural traditions and custom” / Article 12 with ‘the right to manifest, practise, develop and teach their spiritual andreligious traditions, customs and ceremonies; the right to maintain, protect,and have access in privacy to their religious and cultural sites; the right tothe use and control of their ceremonial objects; and the right to therepatriation of their human remains” / Article 13 with ‘the right to revitalize, use, develop and transmit to future generationstheir histories, languages, oral traditions, philosophies, writing systems andliteratures…’ / Article 14 with ‘have the right to establish and control their educational systems andinstitutions’ / Article 15 with ‘theright to the dig­nity and diversity of their cultures, traditions,histories and aspirations’ / Article 25 with ‘the right to maintain and strengthen theirdistinctive spiritual relationship with their traditionally owned or otherwiseoccu­pied and used lands, territories, waters and coastal seas / Article 31 with the right to maintain, control, protect anddevelop their cultural heritage, traditional knowledge and traditional culturalexpressions, as well as the manifestations of their sciences, technologies andcultures…
22. Joseph Sax, above n 6.
23. Andrew Erueti, (2017) ‘The politics of international Indigenous rights’, (2017),67 (4) University of Toronto Law Journal 569.
24. Ibid, 571.
25. Ibid, 571.
26. Alexandra Xanthaki, above n 7.
27. Laurajane Smith, (2000), “A history of Aboriginal heritage legislation in south-eastern Australia”, Australian Archaeology, Number 50, (2000), 109-118
28. The specific legislation considered is the National Parks and Wildlife (Amendment) Act 1969 (NSW); the Archaeological and Aboriginal Relics Preservation Act 1972 (Vic.) and Aboriginal Relics Act 1975(Tas.).
29. Laurajane Smith, above n 27, 109.
30. Laurajane Smith, above n 27, 111-112.
31. Tasmanian Aboriginal Centre Inc v Secretary, Department of Primary Industries (etc.) (No 2) [2016] FCA 168.
32. These provisions are common in ss 9 and 10 and in similar terms in s 12 in thecontext of a declaration in respect of an Aboriginal object.
33. ATSIHPA s 22 – currently punishable by up to a 100 penalty units and 5 years imprisonment for an individual and 500 penalty units for a corporation.
34. ATSIHPA s 15.
35. ATSIHPA s 13(2).
36. Graeme Neate, (1989), ‘Power, Policy, Politics and Persuasion – Protecting Aboriginal Heritage under Federal Laws’ (1989) Environment and Planning Law Journal, 214 – 248, 223 citing Hansard, House of Representatives 9 May 1984 p 2129; Senate 6 June 1984, p 2587.
37. Carolyn Tan, (2016), “The different concepts and structures for heritage protection and native title laws: the nature and pitfalls of public heritage and private rights”, chapter in Pamela McGrath (ed) The Right to Protect Sites: Indigenous Heritage Protection in the Era of Native Title, AIATSIS, Canberra 2016, 29.
38. See Graham Atkinson and Matthew Storey, (2016), “The Aboriginal Heritage Act 2006 (Vic): a glass half full?”, chapter in McGrath 2016 above n 64.
39. Maboper Brennan J, 58.
40. NTAss 29 – 39.
41. Between 2012and 2017 the relevant dealt with over 100 applications to arbitrate the grant of a mining title because agreement could not be reached between the parties. On only two occasions has there been a determination by that the grant of a mining title cannot proceed.
42. NTA s 38(2).
43. WAHA s 17, NTASSA s 33-36, VAHA s 28, 29, WACHA ss 92 -96.
44. WACHA ss 109-110. The activities that constitute Tier 1 activities are (at the time of writing) yet to be finalised in the regulations to the new Act.
45. WACHA ss 111 -112. Similarly, the activities that constitute Tier 2 and 3 activities are yet to be finalised in the regulations to the new Act although it is presumed that resource extraction (mining) activities will constitute a Tier 3 activity. A Tier 2 activity will usually require an ACH Permit (s 113) but may instead be authorised under an ACH management plan (s 11). A Tier 3 activity will require an ACH management plan (s 112).
46. Specifically: “that the applicant will take all reasonable steps possible to avoid, or minimise, the risk of harm being caused to Aboriginal cultural heritage by the activity” - WACHA s 120(1)(d).
47. WACHA s 138(2)(e) and (f).
48. WACHA s 143. If no LACHS is appointed the proponent is to attempt agreement with the relevant native title party. An agreement under the NTA can satisfy the WACHA ACH management plan agreement provisions.
49. Defined in WACHA s 146.
50. ALRA s 21.
51. Joseph Sax, above n 6.
52. Noting that the NTASSA and the ALRA to which it relates predated the UNDRIP.
53. JointStanding Committee on Northern Australia, A Way Forward – Final report into the destruction of Indigenous heritage sites at Juukan Gorge Commonwealth of Australia, October 2021.
54. Ibidp 199.
55. https://www.dcceew.gov.au/parks-heritage/heritage/about/indigenous-heritage

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