Review Report – Review Report of Aboriginal Heritage Act 1975
Executive Summary
This review has confirmed, as indicated in past reviews over many years, that dissatisfaction with Tasmania’s Aboriginal Heritage Act 1975 (the Act) remains high among both Tasmanian Aboriginal people and most stakeholders.
Many of those that provided input into the review process, and particularly Aboriginal people, hold significant concerns with the limitations of the protection measures afforded by the Act. As elsewhere in Australia the desire of Aboriginal people for better protection of their heritage, and for a stronger role in delivering this protection, is a critical driver of reform. We are also observing a similar shift in the expectations of Australians more generally. This is reflected in current national developments.
Protection of Aboriginal heritage also has practical implications, particularly in relation to proposals to carry out developments. Those implications can result in delays to approval, negative sentiment, additional cost and a need to modify proposals or seek approval to interfere with or destroy Aboriginal heritage. These implications are often compounded when issues arise too late for proper planning and management. This has resulted in land owners, managers of land and developers raising concerns over a lack of certainty of process, with many calling for alignment with the State’s Resource Management and Planning System (RMPS).
However, despite the many limitations and inefficiencies inherent in the Act, at its core the Act clearly establishes that it is an offence to interfere with, damage or destroy Aboriginal heritage without prior approval. As a result, the majority of established industries and developers that take on large-scale developments appropriately investigate Aboriginal heritage, and the management and protection of Aboriginal heritage is given careful consideration. The end result is that relatively few permits to interfere / damage / destroy are granted by the Minister each year.
The review received many suggestions for improvement. Among the prominent suggestions were: increased education and awareness; the need for cooperative and proactive management of Aboriginal heritage based on early consideration in planning and development approval processes; and widespread support for cooperative and consultative approaches that closely involve Tasmania’s Aboriginal people. This review has heard a number of other suggestions for reform, outlined in detail later in this report. These are around issues such as the need to define Aboriginal heritage more appropriately (abandonment of the term ‘relic’ is universally supported) and a need for open and transparent processes – along with occasional points of support, such as for the current level of penalties.
Over the past 20 years, all other states and territories have either introduced completely new laws (or at least, have substantively amended their laws) or are currently in the process of doing so. There is also a strong momentum at a national level to aim for more consistent legislation, and recognition of common standards. In reviewing and renewing our own Act, we are therefore part of a national process. We can draw on precedents from other jurisdictions, and perhaps from national standards. This makes it an auspicious time to be undertaking this review.
Findings of the review
The following key findings of the review are based on analysis of input received through the consultation process, including comparison with legislation in other jurisdictions. The focus is on the presentation of widely agreed views on the Act, supplemented and informed by analysis. Findings are grouped together under headings reflecting key themes that have emerged through the review process.
Age and general adequacy of the Act
FINDING #1. While the 2017 amendments addressed a number of the most problematic elements of the Act, it remains amongst the most outdated in Australia. In the view of the vast majority of contributors to this review, the shortcomings of the Act are considerable and cannot be meaningfully addressed through further amendment of the current Act. There is a near consensus on the need for new, modern and contemporary Tasmanian legislation.
FINDING #2. The language, structure and functions of the Act are outdated and do not support management and protection of Aboriginal heritage in Tasmania in a manner that is consistent with contemporary practices and standards for managing Indigenous heritage, nationally and internationally.
Purpose and objective of the Act
FINDING #3. The Act lacks clarity on its overall intended purpose and objective. In other jurisdictions statements of purpose, objectives or principles provide additional guidance in understanding and interpreting the legislation.
Definition of Aboriginal heritage
FINDING #4. The definition of Aboriginal heritage in the Act is limited in scope and does not align with contemporary definitions. As a consequence, not all heritage that is of significance to the Aboriginal people of
Tasmania, and to broader society, is currently recognised and afforded appropriate management and protection.
FINDING #5. New categories of any expanded definition might include contemporary Aboriginal heritage,
Aboriginal areas and Aboriginal landscapes and seascapes. Legislated processes and prescribed criteria would provide a robust and transparent framework for identifying and registering these Aboriginal heritage values.
Early consideration of Aboriginal heritage
FINDING #6. Statutory and policy mechanisms to promote early consideration of Aboriginal heritage in land use planning and approvals processes are absent across Tasmania’s Resource Management and Planning System (RMPS).
There is broad support for the inclusion of mechanisms that result in early consideration of Aboriginal heritage, to improve protection outcomes and to promote public awareness of Aboriginal heritage.
FINDING #7. Education, awareness and appreciation for what Aboriginal heritage is and why it is so valuable are key long-term components in realising improved outcomes in the management and protection of that heritage.
Certainty of statutory process
FINDING #8. The Act almost completely lacks clarity and certainty of process, as well as flexibility and proportionality. This reduces the confidence of investors and developers and other users of land in Tasmania. It also contributes to a more general lack of confidence in the ability of the legislation to adequately and consistently protect and manage Tasmania’s Aboriginal heritage.
FINDING #9. As elsewhere in Australia, it is recognised that all parties involved in the legislated process – including those charged with fulfilling administrative functions, Tasmanian Aboriginal people, proponents and consultants – need to be appropriately informed and resourced to play their part in ensuring efficient process, effective regulation and appropriate protection.
Aboriginal Heritage Council role and representation
FINDING #10. There is broad acceptance that a representative body, such as the Aboriginal Heritage Council, can play an important role in managing and protecting Aboriginal heritage in Tasmania. There is significant support for expanding the current statutory role of the Council.
FINDING #11. Additional prescriptions in the Act around selection of members of the Aboriginal Heritage Council would improve confidence in the Council and be widely welcomed.
Decision making process
FINDING #12. The Act contains little guidance on the process for decision making, and has no requirement for transparency or justification for decisions that are made. Changes in this respect would significantly improve confidence and trust in the decision making process.
FINDING #13. The limited role of Aboriginal people in decision making, and the widespread perception of an ongoing failure to sufficiently value and protect sites of significance to Aboriginal people, underlie their deep dissatisfaction with the current system.
Management tools
FINDING #14. The Act does not provide any of the contemporary tools that are available in modern Aboriginal heritage legislation for managing and protecting Aboriginal heritage. The central process – the permit to interfere (etc) with Aboriginal heritage – is inflexible and unable to consider scale, and the Minister holds the sole responsibility for making decisions. There is nothing to encourage proactive and cooperative agreement among parties, including Aboriginal people, on how Aboriginal heritage should be protected and managed.
Compliance and enforcement
FINDING #15. Enforcement provisions for appropriate punishment and strong deterrence remain essential and are universally supported. It is also considered that a focus on education, as well as streamlined and effective processes, would be the best long-term foundation for effective and broad-based compliance.
FINDING #16. Providing opportunities for Aboriginal people to be involved in compliance and enforcement activities would be welcomed, offers opportunities to individual Aboriginal people, and would help to ensure that the Act is effective and fully supported by Aboriginal people generally.
Ownership of heritage
FINDING #17. Review and renewal of Tasmania’s Aboriginal heritage protection and management legislation provides an opportunity to formally recognise Aboriginal people as the original people of Tasmania and the living custodians of Tasmania’s Aboriginal cultural heritage.
Media release – Roger Jaensch, Minister for Aboriginal Affairs, 1 July 2021
Protecting Tasmania’s 40,000 years of Aboriginal heritage
The Tasmanian Government is committed to protecting Tasmania’s remarkable 40,000 years of Aboriginal heritage.
That’s why I was pleased to table in the Tasmanian Parliament today the Aboriginal Heritage Act 1975 Review Report and the accompanying Tabling Report, which details the Government’s response to the review.
The review involved extensive public consultation, analysis of issues within the Act, comparisons with Aboriginal heritage legislation in other Australian jurisdictions and, importantly, careful consideration of feedback received from Tasmanian Aboriginal people.
We accept the content of the Review Report and are committed to developing a new Aboriginal Heritage Act for Tasmania as soon as possible, subject to further consultation on key issues raised in the Review.
In the meantime, we will begin work right now to deliver real improvements through the early consideration of Aboriginal heritage in planning, development assessment and approvals processes.
Early consideration can deliver greater protection for Aboriginal heritage and greater certainty for developers by allowing projects to respond to heritage matters at their planning stages, rather than after their designs and finances are committed.
We will also progress important projects that will deliver benefits now and support the proposed new legislation, including:
- Replacing the current Aboriginal Heritage Register with a new system providing more information and better public access to it, while protecting sensitive information;
- Supporting the Land Titles Office to provide early advice regarding Aboriginal heritage to people considering the purchase or transfer of property; and
- Training and upskilling more Tasmanian Aboriginal people to work as Aboriginal Heritage Officers, to meet growing demand, within 18 months.
The Tasmanian Liberal Government remains committed to reconciliation and a brighter future for Tasmania’s Aboriginal people, and I look forward to working with them to deliver stronger protection for 40,000 years of Aboriginal heritage and culture in Tasmania.
