The building of the Brighton Bypass bridge over the Jordan River triggered a fierce battle to protect Aboriginal heritage. Dozens of protestors were arrested in both 2009 and 2011, and their charges are making their way through the courts now. The construction union put a ban on the works. The Federal Minister for Heritage gave kutalayna National Heritage status. And still the bridge was built.

The Aboriginal heritage assessment was undertaken after building the bridge over the site was inevitable.

“Shouldnt they have done all of this archaeology before the project even began???” asks ‘Tom of Hobart’, in the comments section of the Mercury.

Aboriginal Heritage Officer Aaron Everett explained, “The way the system works at the moment, the heritage assessments are done too late. After the project has been designed, then the developer has to go and get an Aboriginal heritage assessment done. By then it’s too late. We just get seen as the baddies then. We’d like there to be a broader investment in assessing Aboriginal heritage across the whole of the state, and not leaving it ‘till the last minute and it’s the developer who has to deal with it. I feel sorry for them sometimes”.

The Acts

Everyone seems to agree that the planning system under the Aboriginal Relics Act of 1975 is not working.

The state government have flagged that they want effective Aboriginal Heritage legislation. Brian Wightman, the Minister for Environment, Parks and Heritage, announced last June that “development of new Aboriginal heritage legislation will be a major focus for my Department in 2011-2012.”

Currently, heritage in Tasmania is protected under two Acts. The Historic Cultural Heritage Act 1995 (HCHA) protects non-Aboriginal heritage, and the Aboriginal Relics Act 1975 (the Relics Act) protects Aboriginal heritage.

The Tasmanian Heritage Council, ensures compliance with the HCHA and receives administrative support from Heritage Tasmania, a unit of the Department of Parks and Environment.

The HCHA specifically excludes protecting a place on the ground of it’s Aboriginal history or Aboriginal traditional use. This was recently tested in a case to protect the kutalyana site in the route of the Brighton Bypass when two non-Aboriginal women, Annie Reynolds and Dr Maureen Davey, appealed a Heritage Council decision in the Supreme Court. They claimed that the kutalayna site was of value to the broader Tasmanian community and that the Heritage Council should protect it. The appeal was not successful.

Aaron Everett, Sky Maynard and Ambrose McDonald are confronted by the police at kutalayna. Photo courtesy of Jillian Mundy

The Relics Act is administered by Aboriginal Heritage Tasmania. This sounds like it might be an Aboriginal body, but its not. It is a unit of the Department of Parks and Environment. The Act has failed to give any real decision-making authority to Aboriginal people regarding their heritage, with decision-making vested in the Director of Parks and Wildlife. Or ultimately, the Minister for Parks and Environment, as occurred when Brian Wightman issued a Permit to Interfere with the kutalayna site. Under the Act, Interfere means to “destroy, damage, deface, conceal or otherwise interfere with” Aboriginal heritage.

When the Relics Act was written, the mistaken view that there were no Aborigines in Tasmania was still widely held. The legislation was relatively forward-thinking for its time, an era when Aboriginal people were still struggling to have their existence in Tasmania recognised.

Current issues with the Relics Act range from uncertainty for developers, to ongoing destruction of Aboriginal heritage. What the Act does most effectively is identify sites of significance, and then streamline a process to permit their destruction. Review of this legislation has been underway for twenty-one years and it’s up to it’s fifth iteration, but has not yet made it to the stage of being tabled in Parliament.

However that might be about to change. The Greens, Labor, the Aboriginal community, archeologists, developers, are all in agreement. The legislation needs to be more effective, to provide better protection for Aboriginal heritage, to involve the Aboriginal community in decision-making and to identify heritage sites earlier in the planning processes.

Nala Mansell being arrested at kutalayna. Photo courtesy of Jillian Mundy

Given that it looks like we are getting a new Act to protect Aboriginal heritage, what should be in it?

The 2011 State Labor conference voted unanimously to support a motion, put by Unions Tasmania Secretary Kevin Harkins, to amend the Relics Act. The motion was developed in consultation with the Aboriginal Land Council of Tasmania (ALCT) and called for several amendments to address the inadequacies of the Act. These amendments give us a good guide as to what should be in the legislation.

The first was to remove any reference to the date of 1876, the year that Truganini died and for decades wrongly presumed to be when Tasmanian Aboriginal culture died. The current wording offers no protection for Aboriginal relics created after that date. Nala Mansell, the Secretary of the Tasmanian Aboriginal Centre (TAC) gives an example of the kind of problem this creates. “Lucy Beeton set up the first Aboriginal school on Badger Island. The history behind that is really important to our community. She was buried on one of the islands outside of a cemetery. There’s no laws whatsoever that can protect her grave, because she died after 1876.”

Another amendment is to increase fines to those who cause damage to Aboriginal heritage to reflect those in the Historic Cultural Heritage Act. The maximum fine for destroying rock art, for example, is currently $A1,000, whereas the maximum fine for vandalising (non-Aboriginal) historical heritage is $A500 000, or $1M for corporations.

A further amendment calls for all Planning Schemes and Environmental laws to be subject to protection of Aboriginal heritage, saying that Aboriginal heritage must be afforded the same rights of protection as European heritage covered in current Schemes, and another amendment is to create a Tasmanian Aboriginal Heritage Council with the equivalent powers of the Tasmanian Heritage Council.


The last amendment called for in the Labor party resolution is to expand the powers of the ALCT under the Aboriginal Lands Act 1995 to cover all issues of Aboriginal heritage. This will enable the ALCT to take a more active role in ensuring protection of Aboriginal heritage.

The introduction to the motion calls for these amendments to be made in consultation with, and by agreement with, the Aboriginal community. Lack of consultation and agreement can mean that good intentions backfire. A classic example of this is flying the Aboriginal flag in Parliament.

Nala Mansell explains that “Nick McKim spoke to us and said ‘I think the Aboriginal flag should be in parliament every day and we should be showing our respect to the Aboriginal flag’. “ Nala, as the State Secretary of the TAC, agreed to conduct a community consultation to see whether the Aboriginal community agreed.

“There were some people saying ‘I think that will be a good idea because it shows that’s on Aboriginal land’ and other people were saying ‘look what the governments done to us and they won’t let us have our land back so why would we let them have the flag?’ so we started writing down what people were saying, but in the middle of that consultation, Michael Polley decided that he was going to go and put the Aboriginal flag up.”

The flag is highly symbolic to the Aboriginal community. “For the government to take that away from us and to have full control and power over where it belongs, it’s a kind of slap in the face …. while they’re in there deciding that ‘yes we’re going to destroy Aboriginal heritage’ they’re making themselves feel better by turning around and looking at our flag and telling themselves that they’re doing the right thing by us because they’re flying the flag, but at the same time they’re doing the wrong thing” explained Nala. According to Clyde Mansell, Chairman of the ALCT “Government continuing to fly the Aboriginal flag in the chamber is a further show of disrespect to Aboriginal people and denies our human right of self-determination”.

The flag episode highlights the importance of consultation with the Aboriginal community in the development of the new heritage legislation. Brian Wightman is in agreement and has said “engagement with the Aboriginal community is a key component of the consultation framework for developing the new legislation”.

Part 2 of 3 will be up on Tasmanian Times next Wednesday…

Linda Seaborn is a non-Aboriginal woman who supports Aboriginal rights. She was a participant in the Oyster Cove land claim in 1987, the Rocky Cape land claim in 1991 and the campaign to protect kutalayna in 2010-2011.