Aboriginal cultural heritage law in New South Wales is facing its biggest reform in more than 40 years.  The State Government invited public comment and is currently considering submissions received on a draft bill to create a standalone Aboriginal Cultural Heritage Act,[i] amid widespread agreement that legislative change is long overdue.[ii]

Aboriginal and Torres Strait Islander cultures are the oldest continuous living cultures on earth.[iii]  While 29 April 2020 will mark 250 years since Lieutenant Cook’s first encounter with the Gweagal People at Botany Bay,[iv] a recent report by the Australian Law Reform Commission into the incarceration rate of Indigenous Australians has acknowledged that “the legacy of historical dispossession and dislocation from land, culture and family has ongoing harmful effects for Aboriginal and Torres Strait Islander peoples, commonly described as ‘intergenerational trauma’”.[v]

The Australian Productivity Commission has identified recognition of culture as being critically linked to the wellbeing, social and economic development of Aboriginal and Torres Strait Islander peoples.[vi]  Although the Constitution Act 1902 (NSW) recognises the unique spiritual, social, cultural and economic relationship that Aboriginal people have with their traditional lands and waters,[vii] NSW is the only Australian state that does not have a standalone Aboriginal cultural heritage Act.[viii]

Instead, legislative protections are currently located in the National Parks and Wildlife Act 1974 (NSW) (NPWA).  Aboriginal representative bodies including the NSW Aboriginal Land Council and native title service provider NTSCORP Ltd have long argued that including Aboriginal cultural heritage protections alongside provisions concerning flora and fauna is disrespectful to NSW’s First Nations.[ix]  Similarly, the NSW Ministers for Aboriginal Affairs and the Environment and Heritage have described the NPWA as “outdated, offensive to Aboriginal people, and out of step with other jurisdictions”.[x]

Concerns have been raised over the limited scope and effectiveness of the NPWA, and the lack of a formal decision-making role for Aboriginal peoples to protect and manage their culture and heritage.[xi]  The existing statutory regime is restricted to protecting tangible places and objects,[xii] in what the NSW Environmental Defenders Office has labelled a “stones and bones” approach to cultural heritage.[xiii]  The NPWA does not currently recognise intangible heritage,[xiv] such as song-lines and stories, and has therefore been criticised as inconsistent with Aboriginal peoples’ understandings of culture.[xv]

It is an offence under the NPWA to destroy, deface, damage or desecrate an Aboriginal place or object, or move an Aboriginal object from the land on which it is located.[xvi]  The Office of Environment and Heritage issues Aboriginal Heritage Impact Permits (AHIPs) which provide a defence to prosecution where such harm to an Aboriginal object or place cannot be avoided.[xvii]  Almost 200 AHIPS were granted between 2013 and 2015, and none were refused.[xviii]  These statistics have attracted criticism that the NPWA is more permissive of cultural destruction than protective of heritage.

The need to reform the NPWA was identified as early as 1980 when a Parliamentary Select Committee recommended that an Aboriginal Heritage Commission be established.[xix]  In 2010 there was bipartisan agreement in NSW to reform the Aboriginal cultural heritage regime after the 2011 election.[xx]  A draft reform model was released in September 2013 for public consultation.[xxi]  After four years of consideration, the Government reopened public consultation on a revised model in 2017 and released a draft Aboriginal Cultural Heritage Bill 2018 in February this year.

Key initiatives proposed by the draft bill include:

• formal recognition that Aboriginal cultural heritage belongs to Aboriginal people, not the Crown;
• a revised definition of the term “Aboriginal cultural heritage” that includes intangible cultural heritage; and
• a new governance framework featuring a new Aboriginal Cultural Heritage Authority which will hold ownership of Aboriginal objects on behalf of all Aboriginal people in NSW.

The State Government conducted public information sessions and workshops between September 2017 and April 2018, and invited submissions on the draft bill until 20 April.  The NSW Government is now considering this feedback as it finalises the draft bill.

This consultation coincides with consideration by the Commonwealth Government of possible amendments to the Native Title Act 1993 (Cth) (NTA).  The Commonwealth Attorney-General and Minister for Indigenous Affairs released an options paper for public discussion in November 2017 and intend to release an exposure draft native title amendment bill later this year.[i]  Stakeholders have stressed the need for coherence between State and Commonwealth Aboriginal cultural heritage, native title and land rights legislation.

Regardless of subject matter, policies affecting Australia’s First Nations including Aboriginal cultural heritage and native title reform must be developed in good faith through genuine collaboration with Indigenous Australians to ensure any reforms are culturally competent and appropriate.