Native Title Year in Review 2022-2023

What you need to know

• The Federal Government continues to progress national cultural heritage protection reforms in partnership with the First Nations Heritage Protection Alliance.  
• The first stage of national engagement in 2022 resulted in a Discussion Paper and Options Paper setting out three options for reform. The three options all enshrine the right to free, prior and informed consent (FPIC) and the right to self-determination, with decision-making in the hands of First Nations people.  
• A second stage of consultation to test and explore the three options has been ongoing throughout 2023.  This will culminate in a second options paper and ultimately the delivery of an Options Report to the Minister.  

What you need to do

• Look out for the second Options Paper to be published by the Federal Government and First Nations Heritage Protection Alliance later this year.  
• It would be prudent to consider the cultural heritage standards in the Way Forward Report when addressing cultural heritage matters, given they are likely to be incorporated into Australian law.  

Reminder: Federal Government's response to Joint Standing Committee's Way Forward and Never Again Reports

On 24 November 2022, the Federal Government tabled its response to the Joint Standing Committee on Northern Australia's A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge released in October 2021 (Way Forward), and the Never Again: Inquiry into the destruction of the 46,000 year old caves at Juukan Gorge in the Pilbara region of Western Australia – Interim Report released in December 2020 (Never Again). 

The Government agreed or agreed in principle to seven of the eight recommendations arising from the Way Forward report.  

The Government reiterated its commitment to reform the national cultural heritage protection legislative framework through a co-design process with First Nations peoples, and re-signed the Partnership Agreement with the First Nations Heritage Protection Alliance.  

We wrote about the Government's response in our 25 November 2022 Alert "Federal Government responds to Way Forward Report". For more information about the Way Forward Report and Never Again Report and their implications, see our in our Native Title Year in Review 2021 article "Modernisation of cultural heritage protection legislation begins" and our Native Title Year in Review 2020 article "The long shadow of heritage destruction: Fundamental reset of Aboriginal cultural heritage protection in Australia".

What has happened in the last 12 months?  

Minister Plibersek re-signed the Partnership Agreement with the First Nations Heritage Protection Alliance, which was previously signed by the Morrison Government in 2021.  The new partnership agreement extends the term of the original agreement (which was due to expire on 28 November 2022) and broadens its scope.  The goal of the Partnership Agreement is to develop a recommendation for comprehensive reform for cultural heritage protection to be put before Minister Plibersek by 30 May 2023 (since extended), with further policy and implementation details to be developed after this time.  

The first stage of national engagement in 2022 resulted in the release of Discussion Paper that will guide consultations as part of the national engagement process and Options Paper: First Nations cultural heritage protection reform setting out three options for reform. 

Three options for reform

The Options Paper sets out three proposed approaches to reform.

Overarching federal standalone legislation  

This model would replace all current federal, state and territory regimes with standalone federal legislation (including the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)).

It would create a national body representing First Nations people from each state and territory that would appoint and empower local First Nations groups to make decisions about their cultural heritage.  Decisions about impacts on cultural heritage would, as far as possible, be made by these local First Nations bodies.  

The Options Paper acknowledges difficulties around appointments, funding and governance of local First Nations bodies and interaction between the national scheme and state and local planning legislation.

Federal accreditation of state and territory legislation that meets mandatory national standards

The Federal Government would develop a set of best practice national standards.  The national standards would be informed by UNDRIP, and enshrine the right to free, prior and informed consent (FPIC) and the right to self-determination.  

For more information about UNDRIP and FPIC see "FPIC's reach expands beyond native title and cultural heritage", our Native Title Year in Review 2021 article "A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent" and our Native Title Year in Review 2020 article "Free, prior and informed consent".

State and territory legislation that meets those national standards could be accredited. If legislation is not accredited, federal legislation would apply.  Federal legislation would be similar to that referred to in option one.  The proposed national body would assess state and territory legislation against the national standards.

This option would allow states and territories to continue providing heritage management protections suited to their jurisdictions which would work in conjunction with other state/territory development planning mechanisms.  As with option one, it would be important to consider how to support and resource local decision-making bodies.

'Model' legislation, which state and territory governments can adopt

The Federal Government would draft overarching model legislation to protect First Nations cultural heritage, which would implement UNDRIP, including the right to free, prior and informed consent (FPIC), and self-determination. This legislation would be adopted and implemented by the states and territories within their individual jurisdictions, replacing the current state and territory legislation.

Intangible heritage 

The Way Forward Report recommended that the Government ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003.  In its response, the Government said that it would carefully consider the 2003 Convention and its application nationally.  The Government noted the overlapping processes and inquiries that need to be taken into consideration, including the Productivity Commission's inquiry into Aboriginal and Torres Strait Islander Visual Arts and Crafts and IP Australia's Study into stand-alone legislation for Indigenous Knowledge.  

The Productivity Commission Report Aboriginal and Torres Strait Islander Visual Arts and Crafts was released in November 2022 and IP Australia has released its Scoping study on standalone IK legislation. The Minister for the Arts announced in January 2023 that the Government intended to release standalone legislation to protect First Nations knowledge and cultural expressions in National Cultural Policy – Revive.  It has not yet ratified the 2003 Convention. 

What next?

A second stage of consultation to test and explore the three options has been ongoing throughout 2023.  The timeline has been extended by a number of months and no end date has been publicly announced.  

There will then be a second options paper and ultimately an Options Report.

The Federal Government has refused to be pressed on a reform timeline.  The Minister recently told Radio National it will take as long as it needs to in order to get it right.  Jamie Lowe of the National Native Title Council has told Radio National that he hopes legislation will be introduced early in 2024.  It remains to be seen whether the Government's commitment to introducing legislation during the current term (ie by May 2025) will be met.

Authors: Leonie Flynn, Expertise Counsel.