Federal Government releases response to Way Forward Report
25 November 2022
What you need to know
- 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 has agreed or agreed in principle to seven of the eight recommendations arising from the Way Forward report.
- The Government has reiterated its commitment to reform the national cultural heritage protection legislative framework through a co-design process with First Nations peoples, and has re-signed the Partnership Agreement with the First Nations Heritage Protection Alliance, which was previously signed by the Morrison Government in 2021. The Government has not committed to a timeframe for when the reforms will commence.
- The Government's response contains no surprises and almost nothing new, notwithstanding that 12 months have passed since the Way Forward report. Modernisation of cultural heritage protection legislation still has a long way to go.
What you need to do
- It is likely that free, prior and informed consent (FPIC) will form part of Australian domestic law in the medium term, and proponents should be alive to this in their future engagement with Traditional Owners.
- In relation to cultural heritage 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.
- Look out for further reports or papers published by the Federal Government and First Nations Heritage Protection Alliance joint working group and any invitations to participate in a consultation process on the development of new cultural heritage protection laws.
Federal Government releases response to Joint Standing Committee's Way Forward and Never Again Reports
On 24 November 2022, Hon Tanya Plibersek MP, Minister for the Environment and Water, tabled the Federal Government's response to the Joint Standing Committee's Way Forward and Never Again reports.
The Government has agreed or agreed in principle to seven of the eight recommendations arising from the Way Forward report.
Minister Plibersek has reiterated the Government's commitment to a co-design process to reform the cultural heritage protection framework across all levels of government in Australia in partnership with the First Nations Heritage Protection Alliance. She highlighted that the principles and priorities that will shape the development of the new legislation are those detailed by the Joint Standing Committee: FPIC, truth telling and open dialogue, genuine partnership, and respect for First Nations culture and history.
We wrote about the Way Forward Report and its implications in our Native Title Year in Review 2021 article Modernisation of cultural heritage protection legislation begins, and the Never Again report in our Native Title Year in Review 2020 article The long shadow of heritage destruction: Fundamental reset of Aboriginal cultural heritage protection in Australia.
Legislative reform for cultural heritage protection
The Government has committed to reforming the national cultural heritage protection framework through a co-design process and recognises the "importance of putting First Nations peoples at the heart of decision-making".
The Government response sheds some light on the progress of the co-design process initiated by the previous Government.
Minister Plibersek yesterday 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 a comprehensive stand-alone legislation for cultural heritage protection to be put before Minister Plibersek by 30 May 2023, with further policy and implementation details to be developed after this time.
The Government response explains that options to reform cultural heritage protections are being developed by the co-design partnership between the Australian Government and the First Nations Heritage Protection Alliance. These options are to be provided to the leadership of the First Nations Heritage Alliance and Minister Plibersek for consideration in the term of the current government (ie by May 2025).
The issues being considered by the co-design partnership include legislative reform, policy amendments, administrative improvement and governance. Consultation with state and territory governments, industry and the broader community has been flagged.
The response makes it clear that industry will be consulted, along with other stakeholders. The Government also notes that the:
"reform process will consider the importance of cultural heritage to First Nations people and all Australians, and will balance this with the need for certainty in development considerations for business and industry".
The Government has highlighted that the principles and priorities that will shape the development of the new legislation include FPIC, truth telling and open dialogue, genuine partnership, and respect for First Nations culture and history. For more information about FPIC see our Native Title Year in Review 2020 article "Free, prior and informed consent", 1 April 2021 and our article "A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent".
Minister Plibersek has not committed to a timeframe for the introduction of the new legislation, explaining that the importance of protecting First Nations' cultural heritage must be balanced against the commitment for the reform agenda to be developed in partnership with First Nations people.
The response suggests that the Government intends the proposed Federal legislation to continue to operate as a fail safe where State/Territory legislation is inadequate, in the same way as the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was intended to do.
Other matters covered in the Response
| Way Forward report Recommendation |
Government Response |
|---|---|
|
Review of the Native Title Act 1993 (Cth) The review should aim to address inequalities in the negotiating position of Traditional Owners in the context of agreement making (including the right to negotiate) and address the principles of FPIC, prohibit "gag clauses" and increase the transparency and accountability requirements on PBCs and Native Title Representative Bodies under the Native Title Act. |
Agreed in principle. The Government states that it is "considering the most appropriate mechanism" to review the native title issues identified in the Way Forward report, and confirms that these will also be considered through the co-design process. |
|
Truth telling Recommends the development of a model for a cultural heritage truth telling process. |
Agreed. The Government has stated that it has committed to truth-telling as an integral part of implementing the Uluru Statement from the Heart in full, which will involve establishing an independent Makarrata Commission to oversee a national process for agreement-making and truth-telling in partnership with First Nations communities and other levels of government. |
|
Fund for the administration of prescribed body corporates Recommends the Australian Government establish an independent fund to administer funding for PBCs, with funding coming from all Australian governments and project proponents. |
Agreed in principle. The Government has committed to working in partnership with native title holders, PBCs, state and territory governments and other key stakeholders to consider a range of options to reform funding of PBCs and build PBC capacity. The Government has stated it will consider how proponents and industry can provide additional contributions to PBCs for negotiation and agreement making on their land, and what other options may be available. |
| Ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003 |
Agreed in principle. The Government has stated it will carefully consider the 2003 Convention and its application nationally. The Government recognises that there are a number of 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'. |
|
Increasing transparency and accountability requirements on PBCs and Native Title Representative Bodies under the Native Title Act. The Joint Standing Committee recommends that PBCs and Native Title Representative Bodies be required to demonstrate adequate consultation with, and consideration of, local community views prior to agreeing to the destruction or alteration of any cultural heritage sites. |
Agreed in principle. The Government has recognised that cultural heritage care and concern may extend beyond the First Nations group with legal responsibility for it under state or territory legislation and stated it would consider the recommendation through its co-designed cultural heritage reform work. |
|
Role of Minister for Indigenous Australians The Minister for Indigenous Australians should be made responsible for all Aboriginal and Torres Strait Islander cultural heritage matters. |
Noted. The Government has not yet decided whether responsibility should sit with the Minister for Indigenous Australians or the Minister for Environment, and will consider this further through its reforms to cultural heritage protection laws. |
Authors: Leonie Flynn, Expertise Counsel and Anna Seddon, Senior Associate.
