Reform of Indigenous heritage protection laws - frequently asked questions

Improving protection for Indigenous traditional areas and objects
Department of the Environment, Water, Heritage and the Arts, 2009

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About the document

This document provides a information about some of the common questions you may have about what reforms are being proposed, what affect they may have, how the reform process is carried out, and how you can have your say on these proposals.

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What is the ATSIHP Act?

The ATSIHP Act enables the Australian Government to respond to requests to protect important Indigenous areas and objects that are under threat, if it appears that state or territory laws have not provided 'effective protection'.

Currently this legislation is triggered whenever an Indigenous person makes an application to the Australian Government to protect an area or object under the Act. When an application is made the Australian Government Minister for the Environment, Heritage and the Arts can make a special order called a 'declaration' to protect the area or object from threats that have the potential to cause harm to it. The Minister can only make a declaration when an Indigenous person (or a person representing an Indigenous person) has requested it.

This Act is meant to be used 'as a last resort' after the relevant processes of the state or territory government have been exhausted.

Why does the legislation need to be reformed?

Chart showing the success rate of applications to protect areas and objects under the ATSIHP Act

Success rate of applications to protect areas and objects under the ATSIHP Act

The ATSIHP Act needs to be reformed to ensure a better process and outcomes for all people involved and ultimately better protection for Indigenous heritage. Reforming the legislation will enable the Australian Government to address the problems of the ATSIHP Act and improve its effectiveness, without compromising protection for traditional areas and objects.

At present, the ATSIHP Act has some fundamental problems in how it is used and applied and in most cases it makes no difference to the ultimate outcome of protection for traditional areas and objects. It has created uncertainty about decisions made under other laws, has provoked disputes and has led to duplication of decisions with increased costs for all parties involved. The current legislation was developed as a short-term measure over two decades ago, so its ability to achieve real results is limited.

Few declarations have ever been made under the Act: 92 per cent of approximately 301 valid applications received since the Act commenced in 1984 have not resulted in declarations. Also Federal Court decisions overturned two of the five long term declarations that have been made for areas.

What kinds of reforms are needed?

After careful consideration of the problems with the Act and initial meetings with Indigenous people, government and other stakeholders we have developed a set of proposed reforms which are outlined in the discussion paper. The types of reforms needed reflect the weaknesses of the legislation.

Main weaknesses of the current legislation Possible reforms
The Australian Government's requirements for 'effective protection' are not stated, creating uncertainty about decisions made under other laws (e.g. state heritage or planning laws). There needs to be a consistent national approach to protecting traditional areas and objects. Specifying best practice standards would help to provide certainty.
Because applications can be made at the last minute, the Australian Government becomes involved too late in decisions, when the costs of changing plans to protect heritage are highest. There need to be incentives for developers to consult Indigenous people at an early stage of planning.
Any Indigenous person or their representative can apply for protection, even if they are not traditional custodians of the area or object in question. This is unfair and can undermine the entitlements of traditional custodians to negotiate agreements about access to land. Traditional custodians' legal entitlements and special knowledge need to be acknowledged in the legislation. The reformed legislation could build on existing processes, such as land rights and native title processes.
The procedures for handling applications are inefficient and do not help resolve matters: The procedures for responding to applications need to be improved, along the following lines:
Applications do not need to include supporting information, but then rarely succeed. The reformed legislation could specify what information applicants need to provide to support their cases.
The procedures can be triggered repeatedly over the same issue. The legislation could make it clear that only one application is needed.
Triggering the procedures can require the preparation of a formal assessment, irrespective of whether this has already been done. The legislation could provide a process for determining what facts are agreed or in dispute, and hence whether any additional assessment work is required.
The procedures do not encourage conciliation between the parties to an application. There could be a requirement for the parties to meet to attempt to resolve their disagreements.
There is little procedural guidance about the legal requirements for making decisions, as highlighted by Federal Court decisions. The purposes of the legislation and the decision-making process could be set out in more detail.
The time limits on declarations do not allow enough time to complete the decision-making procedures. The purposes and lengths of these time limits could be clarified.
There are no processes to prevent secret traditions being aired publicly. The legislation could include powers to prevent the public disclosure of sensitive information.
Indigenous concerns about traditional objects are not properly addressed. The requirement to report human remains duplicates state and territory processes. New requirements could prevent the unauthorised public display of special objects and human remains. The reporting requirement could be streamlined.
The penalties are insufficient to promote compliance with declarations. The penalties and enforcement powers need to be updated.

Possible reforms like those set out above are open for public comment. See how to comment.

What are the benefits of reforming the Act?

The obvious benefit of reforming the ATSIHP Act is that it will lead to better approaches to providing more effective protection for Indigenous peoples' traditional areas and objects nation-wide.

The proposals to reform the Act, if adopted, would also lead to a number of specific benefits for stakeholders. Some of these include:

  • Reinforcing Australia's commitment to advancing the interests of Indigenous Australians.
  • Indigenous Australians would have the best opportunities to protect their traditional areas and objects in every state and territory and in Commonwealth-managed areas.
  • Developers could reduce their costs by meeting with traditional custodians at an early stage of planning.
  • Governments would have more certainty when exercising their land management and development approval functions.
  • Everyone could rely on nationally consistent guidance about the best approach to making decisions about protecting traditional areas and objects.
  • There would be less duplication, more transparency and fewer delays when the Australian Government responds to applications for protection.

Will reforms increase costs?

In general the proposals for reforming this legislation are expected to reduce rather than increase costs for industry and business. If state and territory governments adopt the proposed minimum standards, it would reduce duplication, increase certainty and reduce the risk of delays for developments. Consumers are unlikely to notice any price impacts from the reforms.

It is expected that the proposed reforms could also decrease costs for Indigenous groups and individuals as there would be clearer instructions for making applications and reforms would help to encourage agreements and decisions to be made at an earlier stage. Reducing risks for developers might also help to encourage investments that assist Indigenous communities

One of the purposes of making the proposed reforms available for public comment through the discussion paper is to seek feedback on how possible changes to the legislation might affect industry sectors and individual business. The Australian Government would welcome any feedback about the possible impacts of the proposals in this paper, particularly in regards to the costs-verse-benefits of each proposal.

Will reforms mean less power for the Australian Government to intervene on Indigenous heritage matters?

At present, state and territory governments already make most decisions about Indigenous heritage.

Proposed reforms to the ATSIHP Act would not limit the power of the Australian Government to intervene when it believes effective protection has not been provided. However, it does include the proposal to accredit states and territories whose laws meet Commonwealth requirements for Indigenous heritage protection (proposal 5). This would mean the Australian Government could not intervene to override a decision of an accredited state or territory. Importantly, the Commonwealth Government would only accredit a state or territory when it had demonstrated that its laws and processes met minimum national standards for protection of traditional areas and objects.

This would include that their laws guaranteed the rights of traditional custodians to be the essential source of traditional information and to be fully involved in decisions about protection. Although the Commonwealth would not be involved in the decisions of accredited states and territories, it would review the effectiveness of the accreditation scheme periodically and could make further specifications to the standards in regulations.

The ATSIHP Act has always been meant as a last resort, a kind of safety net when other laws fail. By ensuring there is a more consistent and effective level of protection for Indigenous heritage across the country, the reforms should improve the level of protection and the processes for making decisions. Reforms should also support and improve the ability of traditional custodians to protect and manage their heritage and encourage people to make agreements at an early stage. Being specific about when it is appropriate for this legislation to be used would reduce uncertainty and risks for developers.

Combined, these improvements to the Act should mean fewer cases where Australian Government intervention is needed.

Will reforms affect other Acts like Native Title?

The proposals recognise that over the past decade there have been important changes to Commonwealth, state and territory legislation for Indigenous heritage, land rights, native title and the environment including the introduction of the Environment Protection and Biodiversity Act 1999 (EPBC Act). The proposed reforms aim to bring legislation more in line with other Acts that may affect Indigenous areas such as the EPBC Act and Native Title Act 1993.

It is particularly important to make sure the reforms support native title and land rights, as well as other processes that consider the impacts on Indigenous traditional areas and objects, in decisions about land use and development (see proposals 3-7). This may include officially recognising the traditional custodians as they are acknowledged under native title law.

It could also mean that legislation could be changed to support the Native Title Act's Indigenous land use agreements (ILUAs). At present, any Indigenous person or group can apply for Commonwealth heritage protection under the ATSIHP Act to impede or stop activities even if the activities are authorised under a registered ILUA. One reform proposal (proposal ??) is to have new legislative arrangements that ensure applications to stop any future acts permitted under a registered ILUA would not be accepted and that the activity could not be prevented by the Minister under Indigenous heritage legislation.

Do these proposed reforms take into account other reviews of the Act, like the Evatt Review in 1996?

These proposals for reforming the legislation build on the government's experience with previous reviews and attempts to repair the ATSIHP Act - mainly the 1996 review by Justice Elizabeth Evatt. They attempt to address the concerns that were raised at the time of the Evatt review, particularly the need for a workable accreditation system (see proposals 3 and 4).

In 1996 the 'Evatt review' proposed numerous changes to the Act. These changes went to Parliament for consideration, however stakeholders could not agree on the changes and so following considerable debate the changes did not receive the support of the Parliament and the legislation remained unchanged.

These proposals for reforming the legislation, though taking into account the recommendations from past reviews, have been developed to address current issues and in recognition of the changes to Commonwealth, state and territory legislation for Indigenous heritage .

How can I comment on the proposals?

For full details on making a submission, please refer to our instructions.