reform of aboriginal culture and heritage legislation nsw · origin communications australia pty...

Origin Communications Australia Pty Ltd

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Reform of Aboriginal Culture and Heritage Legislation NSW

Office of Environment and Heritage

Aboriginal Community Consultations Round 1

November/December 2011

Nowra Meeting Notes

Library Annex, Nowra 9th November 2011

Facilitator: Justin Noel M: 0410 342 634

E: [email protected]

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Process – current situation Questions were raised regarding the inclusion of appeal processes and whether this

would include the Land and Environment Court or some tribunal approach.

Some appeal process is essential.

NPWS – currently take ownership, must become partners.

Trust – it is out the door in many places.

Delays in contact feedback are often experienced by community (e.g. 6 month waits).

No one else to turn to in processes.

Community involved with tours, partners, employment, development. More is needed.

Respect to Traditional Owners.

Operational level is critical: o Organisations need to take up our business o Not good enough to say ‘no staff’ o Culture and mainstream mindset (“If we don’t see it we don’t need to worry

about it”) People needed to do the culture and heritage.

Time.

Response documents (e.g. NSWALC to LGA).

No input into committees for marine parks: o Statutory body representatives o ED1 process o Limited membership

Advisory committees (many problems and issues):

o Aboriginal contract not renewed o Initially was there just to get community on board o Now no help/support

Origin Communications Australia Pty Ltd OEH Nowra Meeting Notes – DRAFT 1.1

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Marine Parks Authority: o No Aboriginal community on this o We were warned that was the way they were

“Easy outs” for local governments:

o Template LEP’s o Defer to NPWS Act

Shire Local Council:

o LEP’s o Where is culture and heritage in this process? o Maps with European history used but Aboriginal history not included in plans o Standard template used


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Outline of reform process

September 2012 – Ministerial Appointment Working Party Reports Mid 2012 – Second round of community consultations Issues to be included:

Decisions Processes Cultural significance

Recognition Board process Partnership Leases Employment Financial

Develop Options ↑

↑ Office of Environment &

Heritage

Gavin, Cathryn & local staff

Working Party

Analysis, Review etc.

Community Workshops

(25) ↑ Roundtables

↑ ↑ (5) ↑ ↑ ↑

EOI’s ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ ↑ Govt. agencies

Website submissions Local Government Telephone 1800 Request meetings with

OEH representatives

Industry groups Forestry Farmers CMA’s


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Key principles for legislation reform

Fear that: is it going to just be watered-down? Answer at Working Party level

True spirit of self-determination would have us at top level – not half-way to working party

Workable

Principles

How will this new Act interact with other legislation? Open & honest re. where this sits

What’s in it for us as a community?

Not subordinate to th t


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Legislation currently in place and affecting Aboriginal Culture and Heritage

OH&S Stand Alone Heritage Legislation

Racial Discrimination

↓ NPWS We are the people

of the state (NSW)

EPA

Local Govt

Fisheries

Mining RTA Transport

Land Rights Part 3A Native Title


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What Works / Doesn’t Work

In Abstudy we weren’t controlling, we were supporting.

Do we mandate a certain process?

Stuff that is connected to the land (e.g. rock formations - it is not protected).

Real Property Title.

NOTHING works as far as Culture and Heritage in NSW, therefore, inconsistencies in

approaches and legislation.

Some things work but only to a degree.

Problems with RTA re. test sites vs. walking behind grader to check.

Consultation works up to a point – it’s fluid.

Must be a mandate in place – must be a regulation.

Due diligence guidelines but need people on the ground to do it (Aboriginal people).

Workers being pulled – community vs. department and board.

Feedback processes.

Consult back!

Lots of different methods.

If you employ Aboriginal people in agencies they are still regulated by Acts/Agency.

Need for clear communication and agencies – basic info.

Employees in untenable positions.

Names on an attendance list do NOT equal consultation.

Some tangible sites forestry has sanctioned where wrong thing has been done.

When should these types of meetings happen?

Check what is happening in other communities re. scheduling.

Pro-active – not just reacting.

CMA’s Indigenous workers – need submission re. how to do this.


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Need inter-agency communication:

o must get back to community, not just key people

o broader representation

Problem: risks of interpretation.


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Consultation

Ignorance or design?

Gaps in government process to respect cultural process.

Who speaks for Country? Federal Act, NSW Act -> Registered Claimant process only.

Question re. legitimate face-to-face consultation?

Empowerment, engagement – always minimal.

Has no meaning any more.

What’s the process and criteria for deciding/identifying Traditional Owners in places not

gazetted?

Non-Aboriginal registrar makes decision – this is not OK.

Lack of process for decision-making.

Local tool kit for recognising culture with local government process (DA process) is

being developed.

Cultural authority and power.

Employee constraints.

Erosion of true custodian’s position.

40,000 years of Aboriginal process that works ‘for country’!

National parks – no respect for Traditional Owners.

Transitory rights across/though Country but custodians must be paramount – erosion of

the Traditional Owners’ authority.


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Laws

Now: not equals in partnership - power imbalance.

Nurture the process.

Government needs to support NOT control.

Incompatibility of laws and process – results in divisions or potential divisions.

Importance of cultural values not just science-based.

Don’t impose a process of minimum level to get an answer in set time.

Need for clear roles – Aboriginal people and Government.

TIME – vital.

Take time needed beyond current parliament (therefore bi-partisan support) to get a

quality document.

Predictive map in Shoalhaven re. potential culture and heritage (good approach).

Cost-shift to local government as they are doing it – need for this.

Respect for protocol with people in community.

Cultural landscapes, cultural LEP.

Federal and State must work in tandem for mutual benefit of community and people.

Local government MUST develop Aboriginal heritage study.

Current laws (e.g. board arrangements).

Conflict with laws:

o e.g. National Parks employees on that land/area must work to the board,

therefore they are the D.G. of that park;

o e.g. Maori bush medicine & tucker – government tried to regulate and control

it but Maori told them “no” – left in control of people who’s culture and

heritage it is.


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Terminology

Negotiation vs. consultation – imbalance in negotiations – we don’t have the same

resources.

What terms will be used in the legislation?

Tangible and ‘intangible’.

Not just symbolic – must be meaningful.

Burra Charter – start point / reference.

Clarify ‘consultation’ meaning – the trouble with expectations.

Culture – ours, personal; Heritage – public, posterity, shared.

Boundaries - arguments always about this: Need these to be included/clarified:

o Cultural

o LALC

o LGA / Shire

o CMA

Non-Aboriginal people and bureaucrats get confused re. our meanings of terminology:

o Need to define to our meaning

o Explanations to our understanding

o Definitions

“Traditional Owner” terminology used but not always appropriate.

Custodians.

“Indigenous or Aboriginal” (clarify with use of Aboriginal).

o e.g. LGA changed “Indigenous” to “Aboriginal” (Change over 3 years).

Freshwater and saltwater people (both need to be represented).

“I was called “Abo” at school, not ‘Indigenous’!” [Quote from participant].


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Boundaries, leases and maps

Check OEH website re. maps. Definitions (e.g. LALC boundaries referred to if not fully agreed – mostly of use). In NSW there are three (3) legislation boundaries:

o Local Government boundaries o LALC boundaries o CMA boundaries o + 3 mile limit Crown Land (statutory boundary yet to be tested)

30 year lease only to NPWS – community own the land (through State Land Council).

5 year reports to Government (reviews) – allows you to make recommendations to

Government re. changes to the law for the management of your park.

NSW Parks.

Public lands (local government).

Concerns re. people not understanding Ownership, title, leases etc. and fear that land

can be taken back after 30 years (despite leasing arrangements and hand back).


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Topics/Issues

Personal impacts and pressures.

Who speaks for Country.

Concerns re. process for consents and permits by OEH.

Resourcing.

“Black and White” clarity (not interpreting…).

Negotiation.

Not a tick box approach – consultation/preservation principles.

Clarify consents: destroy/ preserve/ excavate.

Involvement, engagement.

Local community knowledge.

Support NOT control.

How JRRP fits in this process.

Government and community roles and responsibilities.

Timing for planning process.

Proper studies.

Culture and heritage.

Keeping places.

Terminology.

Repatriation.

Regulations.

Schedules.

What is it? What is it not?

Intent of this legislation


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Practice and policy – make clear re. private property site protection.

Penalties.

Be realistic.

Nurture that empowerment (of Aboriginal people).

Aims and objectives of the Act.

Empowered to control sites and destiny.

Opportunity to say “this is our law” - …what do we want?

Existing attempts at protection:

o National Heritage legislation

o National Trust legislation

o What is the intent of these Acts?

Government not acting in our interests despite them thinking that they are.

Criteria is already set by existing legislation – currently need to jump through so many

hoops to protect heritage.

ANY Aboriginal heritage aspects should be protected – need definitions to be clear.

Simpler process.

Appropriate standards needed.

We want control of our own culture – Aboriginal people must be accepted as credible

and reliable, not always providing evidence over and over.

Recognise people of knowledge.

Enshrine policies and procedures as law.

Caution re. not publicising sites as a form of protection.

Protect our languages – integral part of any person’s culture.

Outline WHY this is more important to the wider community.

Concern re. risk of takeover by non-Aboriginal people re. decisions etc.


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What do we want for our kids and grandkids?

Empowered.

Governments not eroding their identity without fear of recrimination.

Know their country.

Know where they come from.

Access to language.

Passionate about heritage and culture.

Visit those protected areas.


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Important inclusions

Need whole thing, area, place protected:

o camp oven

o midden

o stones

o tools

o human remains

o carving grooves

o bones

o painting

o declared Aboriginal sites

o scar trees

o fish traps

Cultural I.P. (Intellectual Property) – common law implications.

Cultural knowledge.

Story protection.

Art protection.

Connection with authority for place names.

Need to include and protect:

o Sculpture

o Ethics

o Aboriginal culture

Inclusion of stories and culture in school curriculum – truth about Country be told from

Aboriginal perspective.


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Landscape.

Aboriginal names for places.

Aboriginal place.

Language.

Surrounding areas (e.g. buffer zones in LEP from the heritage study).

Integrity of area maintained.

Naming of places (different names by different groups) – recognise and reflect other

connecting stories.

History of colonisation.

Future uses.

Bush medicine and tucker.

Travel routes.

Trade routes.

Cultural concepts attached to area/ places.

Protect whole site and meaning.

Access rights.

Integrity of story and knowledge.


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Other Ideas and issues

Partnership with more Aboriginal people (not one person in an organisation).

In parks without Schedule 14 – no arrangement with Traditional Owners.

Quality control.

Becomes an over-arching process….departments will have to increase engagement

with Aboriginal community.

Audit function independent (separate).

Our legislation to be taken OUT of NPWS. They have their own culture internally (Do

what they like and a law unto themselves).

Theory should work in practice.

Research on how many permits approved vs. rejected and reasons why – have the

documentation to argue for protections.

Easy way to get sites on notice.

Criteria clear and transparent.

CHD conserve / EPRG destroy.

National standard of significance assessment – how to assess heritage significance –

across state borders.

If successful in getting stand alone legislation...

o Have a standard for qualifications of person doing accreditation

o Peak bodies/ standards/ criteria to address

o Clarify Land Rights Act and statutory responsibilities

o See how this fits in with new legislation

More opportunities, more employment.

How the Act is to be policed (e.g. EPRG/ CHO => current confusion in process) –

communications within the groups.


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Regulatory bodies and expertise.

Let participants know what other community meetings and roundtables have said (before working party) Gavin to advise of formal answer

Advise re. who is on working party when finalised

Next Steps

Timeframes.

This is far too important to have time constraints placed on us

At end of process all will become available on web

Aboriginal people.

Non-Aboriginal people.

Statutory Roles.

Appointments.

Decision Processes.

Transparency.

Accountability.

Due Diligence.

Challenge Process – Appeal.

Advisory Commission (separate statutory body) (AC & HAC) such as an Ombudsman.

Models (different options to be developed). Principles

Hold Department Accountable


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Reporting Mechanisms

Heritage

Put in Aboriginal perspective.

Tangible.

Family.

Background.

Cultural Values.

What’s Important.

Physical Reality.

Principle.

Values.

Intrinsic value.

Listing (e.g. National Park).


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Questions for reform process

Natural Resource Management. Culture and Heritage. Management and Ownership of Culture and Heritage. Speaking for Country. Land Use Planning and Development:

• From planners’ point of view – where is the current system flawed?

• Advice from the right people

• Which advice do we take?

• Merit process

• Principles of co-operation

• Archaeological reports

• What happens with conflicting advice re. culture and heritage

• LALC’s and other organisations

• Native Title claimant (only successful consulted)

• Work in partnership

• Specify who (role/ position/ organisation) can sign off on archaeological assessment reports (need a framework for working through this e.g. LALC or Traditional Owner)


reform of aboriginal culture and heritage legislation nsw · origin communications australia pty...

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