Final report into the destruction of Indigenous heritage sites at Juukan Gorge has been released

The Joint Standing Committee on Northern Australia has released the much anticipated ‘Final report into the destruction of Indigenous heritage sites at Juukan Gorge’ (Final Report).

With the title ‘A Way Forward’, the report includes broad and far-reaching recommendations for legislative, policy, cultural, economic and structural measures for the protection of Aboriginal and Torres Strait Islander cultural heritage in the future. In this post, we provide an overview of the key findings and recommendations of the Final Report.

Snapshot

1. The Final Report provides an overview and critique of Commonwealth, State and Territory cultural heritage, native title and Aboriginal land rights legislation, including with reference to international conventions and declarations.
2. The Final Report makes a number of recommendations regarding legislative reform, in particular the development of a new national framework for cultural heritage protection, a review of the Native Title Act 1993 (Cth) (NT Act) and the transfer of responsibility for Indigenous cultural heritage matters under Commonwealth heritage and environmental legislation to the Minister for Indigenous Australians.
3. Other recommendations of the Final Report include the development of a model for a cultural heritage truth telling process and the establishment of an independent fund to administer funding for prescribed bodies corporate under the NT Act (PBCs).

Findings

The Final Report made 3 findings:

1. The Australian Parliament should develop an overarching Commonwealth legislative framework based on the protection of cultural heritage to which State and Territory legislation must comply. The Joint Standing Committee noted earlier its views that deficiencies exist in the cultural heritage legislation of the Commonwealth and all States and Territories. The Committee also encouraged the WA State government to review the proposed new Aboriginal Cultural Heritage Bill to address stakeholder concerns.
2. The Commonwealth, State and Territory governments should endorse a set of best practice standards for the management of cultural heritage and the development of cultural heritage management plans.
3. The economic benefits of protecting and celebrating cultural heritage sites should be promoted.

Recommendations

The Final Report made recommendations under 8 headings:

1. Role of the Minister for Indigenous Affairs – the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and Environment Protection and Biodiversity Conservation Act 1999 (Cth) should be amended to make the Minister for Indigenous Australians responsible for all Aboriginal and Torres Strait Islander cultural heritage matters. Administrative responsibility for such matters should also be transferred to the portfolio agency reporting to the Minister for Indigenous Australians.
2. UNESCO intangible heritage convention – the Australian government should ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003. This convention’s purposes include safeguarding, ensuring respect for and raising awareness of intangible cultural heritage.
3. New national minimum standards – the Australian government should legislative a new national framework for cultural heritage protection to set minimum standards for State and Territory heritage protection laws consistent with international laws and the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia. Examples of potential content for such standards include giving traditional owners primary decision-making power and the ability to withhold consent to destruction of cultural heritage, embedding ‘free, prior and informed consent’ principles in cultural heritage negotiation procedures and adequate compliance, enforcement and transparency mechanisms. The use of ‘gag clauses’ in agreements should also be prohibited.
4. Review of the NT Act – the NT Act should be reviewed with the aim of addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in ‘future act’ processes (e.g. for the grant of mining tenements).
5. Adoption of vision statement – the Australian government should endorse and implement the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia. This statement was developed by the Heritage Chairs of Australia and New Zealand and sets out a vision and practical steps for the protection, management and celebration of Aboriginal and Torres Strait Islander cultural heritage.
6. Cultural heritage truth telling model – the Australian government should develop a model for a cultural heritage truth telling process to be followed by individuals, governments and other land users in engagement with Aboriginal and Torres Strait Islander peoples about their cultural heritage.
7. PBC funding – the Australian government should establish an independent fund to administer funding for PBCs to assist them in representing traditional owners in cultural heritage matters. The Commonwealth, State and Territory governments and proponents negotiating with PBCs should contribute to this fund.
8. PBC transparency and accountability - the Australian government should increase the transparency and accountability requirements for PBCs and native title representative bodies under the NT Act with respect to consultation and consideration of traditional owner views before agreeing to impacts on cultural heritage values.

The implications of the Final Report will likely be influenced by the extent to which its recommendations are adopted by Commonwealth, State and Territory governments and the time taken to complete any review and reform processes. That said, the Final Report presents a powerful call for change. Current cultural heritage legislative review and reform processes across a number of Australian jurisdictions may present an opportunity for reform in the short term. The findings and recommendations of the Final Report will likely be a central focus in those processes.

By Melanie Debenham, Partner and Emily Wilson, Senior Associate