Significant cultural heritage reform on the cards for Australia

Mark Geritz, Tosin Aro, Georgia Davis and Sophie-Rose Greer
21 Dec 2022
Time to read: 4 minutes

The Federal Government’s response to the inquiry into the destruction of Aboriginal heritage sites at Juukan Gorge centres on developing a new national legislative framework for cultural heritage protection in conjunction with First Nations Peoples.

In October 2021, the Joint Standing Committee on Northern Australia released “A Way Forward”, its final report into the destruction of Indigenous heritage sites at Juukan Gorge. The Federal Government published its Response to that report (and to the Committee’s 2020 interim report) in November 2022.

As a result, a new federal cultural heritage legislative framework, reforms to the Native Title Act 1993 (Cth) (NTA) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), and enhancements to the role of Prescribed Bodies Corporate (PBCs) are on the cards. These are now in the hands of a “co-design partnership” between the Commonwealth Government and the First Nations Heritage Protection Alliance (FNHPA), which was established on 29 November 2021 under an agreement between the Morrison Government and the FNHPA.

As part of the response to the Committee’s recommendations, the Commonwealth Government has signed a new “Partnership Agreement” with the FNHPA, which commenced on 28 November 2022 and is intended to continue in force until 30 June 2024.

The First Nations Heritage Protection Alliance and Joint Working Group

The FNHPA is made up of the following member organisations: Aboriginal Corporations, Land Councils, representative bodies and service providers, advocacy organisations and other Traditional Owner organisations from across Australia. It was initially created as a network to warn Traditional Owners of possible threats to cultural heritage sites following the destruction of Juukan Gorge.

The FNHPA’s role in the proposed reform is set out in the Partnership Agreement. The Partnership itself is being overseen by a Joint Working Group made up of three nominees from each of the Government and the FNHPA. Decisions of the Joint Working Group are made on the basis of consensus (however, it is worth noting that the Partnership Agreement is not intended to be legally binding).

The Joint Working Group has until 30 May 2023 to put before the Minister proposals for stand-alone legislation to better manage and protect First Nations cultural heritage on a national level. The Government has made no indication as to when any proposal will be implemented into legislation, however, the Minister has publicly acknowledged a “sense of urgency”.

Other outcomes of the Partnership Agreement include:

  • to put before the Minister and other relevant stakeholders (including State and Territory Governments) proposals for how the Commonwealth can assist in the facilitation of the implementation of “Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia” beyond the need for legislative reform, including “Country mapping”; and
  • to advise on First Nations cultural heritage matters as part of the proposed reform of the EPBC Act, and any other matter referred to the Joint Working Group by the Minister.

The Government’s response

The Government addressed all recommendations made in the Committee’s interim and final reports in its Response. Perhaps most notably, the Government has agreed with the proposal for a new federal legislative framework for cultural heritage protection. At this stage, it does not appear that this federal legislation would replace State or Territory legislation, but would likely propose minimum standards.  

The Committee recommended that these minimum standards for State and Territory cultural heritage protections be consistent with relevant international frameworks. The Government has committed to utilising a co-design process to consider the Committee’s requests for (without limitation):

  • Traditional Owners to be able to effectively enforce Commonwealth protections through civil action;
  • the banning of contractual mechanisms that limit First Nations peoples’ ability to pursue cultural heritage protections at the federal level (so-called “gag clauses”);
  • a process to reconsider decisions if significant new information about cultural heritage comes to light;
  • the Commonwealth to retain the ability to extend protection to and/or override decisions made under inadequate State or Territory protections that would destroy sites without Aboriginal and Torres Strait Islander peoples’ consent;
  • clear processes for identifying the appropriate people to speak for cultural heritage, based on principles of self-determination and recognising native title or land rights, as well as statutory representative bodies where they exist; and
  • the Minister for Indigenous Australians to be the responsible Minister under the new legislation.

In addition, the Government’s Response addressed the following:

Review, and amendments to, the NTA

The Government advised that it is considering, within its partnership with the FNHPA, the Committee’s recommendations to amend the NTA with the aim of, broadly, addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the future act regime. In particular, the Committee’s recommendation referenced the need for the review of section 31 of the NTA (right to negotiate), section 66B (replacement of the applicant) and Part 6 (the operation of the National Native Title Tribunal). The recommendation also calls for the review of the NTA to include standards for negotiation that require proponents to adhere to the principle of “Free, Prior and Informed Consent”, and the prohibition on the inclusion of “gag clauses” in contracts.

Increase funding and transparencies of PBCs

The Government has responded by showing a commitment to consider a range of options (over and above proponent contributions) to reform funding of, and capacity building for, PBCs. Ms Plibersek has outlined her plan to level the playing field between negotiating parties. Specifically, the Government has committed to exploring how government funding can supplement contributions made by proponents and industry participants to PBCs for negotiation and agreement-making on their lands.

Going forward – impacts for project proponents

No actual change in cultural heritage protection laws has yet been implemented on a national level as a result of the Committee’s interim and final reports, or of the Government’s Response. However, it seems abundantly clear that this Government is motivated to enact significant reforms to Australia’s Aboriginal cultural heritage framework. As a result:

  • proponents may wish to get on the front foot and undertake a review/ audit of existing agreements with Traditional Owners; and
  • for any agreement-making processes that are currently underway, proponents may wish to review/ consider their negotiation strategy,

in light of the recommendations being considered by the Government and FNHPA.

Key takeaway

Significant cultural heritage reform is very likely on the way for Australia. Parties involved in cultural heritage negotiations should be aware of ongoing changes in the law at a national level and how any newly introduced Commonwealth legislation will interact with currently in-force State law. Finally, and in anticipation of these reforms, proponents should be informing themselves of the standards for “best practice” in Indigenous cultural heritage (and native title) agreement-making and implementation, and putting in place systems to ensure that their practices and procedures meet these standards.

In the meantime, we will be keeping a close eye on the progress made by the Joint Working Group towards developing concrete proposals for legislative reform of existing federal First Nations cultural heritage protections.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.