Native Title Year in Review 2022-2023

Summary

• The Tasmanian Government is developing a draft Exposure Bill for new Aboriginal cultural heritage protection legislation.
• Proponents operating in Tasmania should keep a watching brief for consultation on the draft Bill in 2023.

Tasmanian Government releases consultation paper

Tasmania's Aboriginal Heritage Act 1975 is generally regarded as inadequate.  All reviews of the Act since the late 1990s have recommended its replacement.

In 2022, the Tasmanian Government invited submissions on its consultation paper: A new Aboriginal Cultural Heritage Protection Act – High-level Policy Directions.  The consultation paper outlined the Government's proposed approach to new Aboriginal heritage protection legislation that will better respect and protect Tasmania's Aboriginal cultural heritage.  

The paper outlined the Government's proposed eight key elements of a new Act:

1. Articulate an explicit purpose and objectives, including recognition of Tasmania's Aboriginal cultural heritage and acknowledgment of Tasmania's Aboriginal people as custodians of their cultural heritage.
2. Expanded and more appropriate definitions, including removal of the term "relic", recognition and registration of intangible heritage, and potential specification of other categories of heritage (eg secret and sacred heritage).
3. Address issues of ownership/custodianship of Aboriginal cultural heritage, including removing current provisions assigning ownership of Aboriginal cultural heritage on Crown land to the Crown, and clarifying rights of private land holders in relation to undertaking certain activities;
4. Establish a statutory Aboriginal representative body that would have decision making powers. The Government proposes to strengthen the existing Aboriginal Heritage Council (AHC) by legislating relevant processes and developing membership requirements relating to eligibility, skills, gender balance and regional representation.
5. Ensure Tasmanian Aboriginal people have a central role in deciding how Aboriginal cultural heritage is to be managed, by pursuing a model by which decision making should lie with the strengthened AHC wherever practically possible. The Minister may still be involved in certain matters, eg if proponents and the AHC cannot agree on a CHMP.
6. Align with Tasmania's planning and development system to ensure Aboriginal cultural heritage is considered early in planning processes.
7. Introduce modern management mechanisms, including providing for CHMPs for high-risk/high-impact projects; providing for smaller-scale or less complex developments to be subject to a streamlined assessment and approval process through the strengthened AHC; establishing a statutory Aboriginal Cultural Heritage Register; and creating Aboriginal Cultural Heritage Protected Areas for areas requiring the strongest protection.
8. Strengthen compliance and enforcement by retaining current penalties for disturbing or damaging Aboriginal cultural heritage, introducing penalties for administrative offences that do not directly harm heritage, including "stop work" and "vacate site" provisions, and include provisions enabling the issue of infringement notices and remediation orders. 

There was an initial six-week consultation period in March 2022. The Government has continued to consult on the proposals with

Tasmania's Aboriginal people and stakeholders since that time. 

The submissions received in response to the consultation paper are now available on the Aboriginal Heritage Tasmania website.

A long path to this point

There have been multiple reviews of the Act since the 1990s.  

A 2019 review of the Act resulted in a review report tabled in the Tasmanian Parliament on 1 July 2021, along with a Government response accepting the key findings of the review report.

We wrote about the 2019 consultation and the then-anticipated Review Report in our Native Title Year in Review 2019 article, "What is happening in the Indigenous cultural heritage space in each State?".

The consultation paper also refers to recent and ongoing Aboriginal cultural heritage reforms, and examples of best practice, in other jurisdictions.  We foreshadowed this national reform movement in our Native Title Year in Review 2021 article "Modernisation of cultural heritage protection legislation begins" and Native Title Year in Review 2020 article "The long shadow of heritage destruction: Fundamental reset of Aboriginal cultural heritage protection in Australia", where we looked at the implications of the Joint Standing Committee on Northern Australia's Interim and Final reports into the destruction of the Juukan Gorge.

Next steps: a draft Bill

The Tasmanian Government is now developing a draft exposure bill for new Aboriginal cultural heritage protection legislation.  

The Government has committed to undertaking a full process of public consultation on that draft bill in 2023, prior to finalising it for introduction into Parliament for debate.

Authors: Brigid Horneman-Wren, Lawyer.