Jennie George (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Environment and Heritage) Share this | Hansard source

I will begin by saying that the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 is very disappointing because it is very narrow in its scope and does not address the very important broader Indigenous heritage issues that this nation so desperately needs to come to terms with. The government had promised to better protect Indigenous heritage, but if the bill before us today is the end result of that commitment then it really fails the test because it proposes only very limited—albeit uncontroversial—changes. It certainly does not uphold the commitments made by Senator Robert Hill, which my colleague has referred to, when back in 2003 Senator Hill told the Senate:

We recognise the shortcomings in the existing system. Reform of that is long overdue ... We are anxious to have a new and better piece of legislation put in place as quickly as possible.

We certainly concurred with the words of the Senate leader at that time, yet we see a very limited response to the claims that were made about the inadequacy of Indigenous heritage protection and the need to get new legislation into parliament as quickly as possible.

The legislation before us was referred to a Senate committee. It was asked to address three specific issues: firstly, whether the amendments were adequate to protect Indigenous heritage; secondly, whether the amendments addressed concerns of Indigenous Australians; and, thirdly, whether the amendments reflected changes recommended by the Evatt report. Again, my colleague the member for Banks has made extensive reference to the recommendations made by Justice Elizabeth Evatt in that very important inquiry. But what we have seen since 1996 is the government’s failure to properly meet its obligations to protect and conserve Indigenous heritage. In fact, this government has drastically reduced its engagement in Indigenous heritage issues, passing the buck, as it so often does, to the state governments.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 was only ever a temporary stopgap measure. It was described in Justice Evatt’s report as an act of ‘last resort’, intended to fill the gaps in state and territory heritage protection. In fact, the act, with all its limitations, has been little used. With the advent of the Environment Protection and Biodiversity Conservation Act, it appears that it is the intention of the Commonwealth to confine its statutory involvement in Indigenous heritage issues to the EPBC Act while ignoring the broader scope that could potentially be offered by the Aboriginal and Torres Strait Islander Heritage Protection Act.

If properly administered and implemented, the Aboriginal and Torres Strait Islander Heritage Protection Act has a far greater capacity to protect significant Indigenous heritage, as the EPBC Act confines the statutory role of the Commonwealth to matters of national and international significance. The EPBC Act, in my view, is totally ineffective in dealing with the protection of Indigenous heritage values at a local level. I will show this to be the case as I outline in more detail some of the difficulties that we have had in preserving a significant site of Indigenous heritage value in my electorate.

When the heritage amendments to the EPBC Act were debated in 2003, Senator Hill gave repeated assurances that the government was carrying out a consultation process with Indigenous communities on an amendment bill to the Aboriginal and Torres Strait Islander Heritage Protection Act. He said that this would ensure that the Commonwealth continued to play an active role in the protection of Indigenous heritage sites that did not fall within the scope of the EPBC Act. It seems to me that it is the case that no such consultations of any substance ever took place. In relation to the National Heritage List—or what will remain of it following debate on the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 that was introduced recently into this chamber—it appears that a place of significance to a particular Indigenous community will never be eligible for inclusion on the list unless it can establish that the place is important to the broader Australian community and very stringent criteria will apply. In my view, the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill fails the first test that the Senate was asked to consider: do the amendments proposed in the bill protect Indigenous heritage in its broader sense? I think they fail to do that.

In terms of the second reference, which was to address the concerns of Indigenous Australians, the minority Senate report states:

We are concerned that the timing of the ... inquiry ... was such that we were unable to illicit [sic] substantive Indigenous community submissions or enable adequate community consultation to properly ascertain the level and substance of community concern regarding this Bill.

It does not bode very well for meeting the second test—does it address the concerns of Indigenous Australians?—when the time limits were so short and there was never adequate or extensive consultation with the people most affected and most interested in the outcome of this legislation.

The third thing the Senate was asked to consider was whether the amendments reflect the changes recommended in the report of Justice Evatt. I again quote the minority Senate report and its conclusions:

... it is fairly clear that these amendments as a whole do not address the report’s recommendations in a substantive fashion and that there is no evidence of any other efforts on behalf of government to address the report’s major recommendations.

I guess that extensive report, dating back to 1996, is just gathering dust on the bookshelf. The people who were involved in the preparation of the most comprehensive recommendations going to the heart of Indigenous heritage protection would be extremely disappointed to see the lack of commitment by this government on many—if not all—of the proposals recommended by Justice Evatt. Within the scope of Evatt’s recommendations were the following suggestions:

• The integration of cultural heritage assessment into the planning and development process at the earliest possible stage.

…            …            …

• That decisions on a site are an issue for Indigenous people to determine on the basis of an assessment of the intensity of belief and feeling of significance.
• Decisions should be made on the basis of information provided by relevant Indigenous communities or individuals and that any anthropological information be provided with their consent
• That a voluntary mediation procedure should be developed to encourage agreement making, within an adequate timeframe to allow proper consultation and negotiation with the site protected during the process.

Even if those proposals arising out of the Evatt report had been implemented—and there has been a long time for this government to make a commitment to the implementation of those recommendations—I believe a lot of very important historical and cultural sites of significance would have been preserved in perpetuity for the benefit of this nation. Had Justice Evatt’s recommendations been accepted, we could have taken some pride as a nation in our efforts to collectively preserve our unique and special heritage. Instead we inflict continuing trauma on many Indigenous communities by our lack of respect for and protection of our very valuable heritage.

I recently had an email from a woman a long way away—from Esperance—whom I had not met, but she put this argument to me very eloquently. She wrote specifically about the possible destruction of ancient rock art at the Burrup Peninsula:

I remember being appalled when I heard of the Taliban’s destruction of the great statues to Buddha in Afghanistan. Although I had never heard of the statues before and probably would never have travelled to Afghanistan to see them had they not been destroyed, I felt their loss as one of humanity’s great treasures: something that belongs to the heritage of all of us as human beings, like the Pyramids of Giza, Stonehenge, Angkor Wat, Great Zimbabwe, the Lascaux and Altamira cave paintings.

I felt a similar shock at the loss of human heritage when it appeared that looters had stolen the archaeological treasures of the ancient Sumerians, Babylonians and Assyrians during the 2003 invasion of Iraq, and was immensely relieved to discover that the museum staff had simply taken the treasures home to protect them from destruction and looting. The ancient heritage of Iraq is the heritage of all civilisations. We in Australia have been bequeathed an important site of ancient human art on the Burrup Peninsula far far older than anything from ancient Sumer, Greece or Egypt.

She concludes:

It is our duty as custodians of this part of the world to ensure that such a treasure is preserved for all humanity, for it is the heritage of all humanity.

I thought she expressed that particularly well and poignantly.

I thought I would use the time I have in discussion of the limitations of this bill to outline a recent issue that has arisen in my local community and one which has finally ended in a successful outcome. But I want, for the record, to include details of some of the correspondence I have had with different ministers about this piece of land, just to show the limitations and inadequacies of the current approach to the protection of Indigenous heritage that is local and site specific.

That decision relates to land that was up for sale—Defence land which adjoins Hill 60 in Port Kembla, in my electorate of Throsby. The decision to put that land up for sale has been reversed but it is important, as I said earlier, to record in Hansard the arguments that were advanced by this government initially for the sale of the land. Hill 60 has a particular significance for the Illawarra’s Indigenous community. They all united in their condemnation of the proposed sale of the parcel of land adjoining Hill 60, which I should note had already been granted heritage listing by the New South Wales government.

It seems to me—and I think I will convince you in what I have to say—that the government’s final position outlined to me in a letter of 2 November is totally at odds with the earlier justification for disposal of the land. It is clear to me that the community campaign forced this government into making a political decision rather the one that should have been based on the intrinsic merit of the Indigenous heritage properties of the land in question. The original decision to dispose of the land in question shows the obvious limitations and weaknesses in the protection of Indigenous heritage.

At the ‘Save Our Hill’ rally on Sunday, 6 August this year, Uncle Reuben Brown, one of our esteemed local elders, referred to the community’s longstanding connection with this land when he said:

On this land here is where my wife’s mother and my great grandmother’s little sister lived in a tin shed. This is where they lived until about 1942 when the army moved them out, but that doesn’t change the fact that over there is where our ancestors have been buried. They want to sell the land from under us. We’ve got to do something to make sure that it doesn’t happen.

As their local federal member and as a person with a longstanding interest in and involvement with Indigenous communities, I agreed wholeheartedly with the justice of their case and pursued their claims with several government ministers and, I have to acknowledge, with the support of the local Liberal senator based in Wollongong. I urged the Minister for the Environment and Heritage to intervene in terms of his authority—or what I thought his authority was—under federal legislation. I also called on the Minister for Families, Community Services and Indigenous Affairs, in a genuine act of practical reconciliation, to have the Defence land incorporated into the current Hill 60 heritage listing by the New South Wales government. Let me, for the record, indicate the responses I received. The first one I had was from Senator Sandy Macdonald, in his capacity as Parliamentary Secretary to the Minister for Defence. First of all, he apologised for the fact that he had not notified me, as the local member, that it was their intention to sell surplus Defence property on the open market. He said:

... due to an administrative oversight, this property was included with the sale of another in an adjoining electorate and the letter was inadvertently sent to the wrong Federal Member.

That caused me some consternation from the beginning. But what was of particularly great concern to me was this claim. He said:

I note your request that I intervene and stop the sale of the land and undertake further discussions with community representatives. I also note your view that the Defence site should remain in public ownership and be used as a focal point in commemoration of the region’s Indigenous history. The defence site is adjacent to the much larger Hill 60 site, which is owned by Council and includes a lookout and picnic area.

I emphasise the next part of his letter:

I am advised the due diligence studies conducted on the Defence site identified no significant heritage, environmental or Indigenous values. Therefore, recognition of Indigenous values would seem to rest more appropriately at the Hill 60 site.

I was amazed that the government had failed to properly understand the significance of this site not just to our Indigenous peoples but to our local community. The due diligence studies referred to were never made publicly available.

On 7 September the environment minister also responded to me in much the same way. I cannot quote it all but let me just say that, in one paragraph of his letter, he says:

In order to determine what values are present at the site, the Department of Defence engaged a consultant to undertake heritage and environmental assessments of the land. The assessments found that, despite the State heritage listing, the area adjacent to Hill 60 contained no significant heritage or environmental values, although some low-level Indigenous values of only limited significance were reported.

So there you are. I took the matter up with two ministers who I thought would have authority to do something about this matter. But, lo and behold, finally we got the decision that should have been the response in the first place. In a letter of 2 November from Sandy Macdonald, parliamentary secretary, suddenly environmental and heritage values are found to exist. The letter said:

I write further to my letter dated 9 August 2006 regarding surplus Defence land ... As you are aware, no compliant tenders were received when the property was placed on the open market ...

Throughout the marketing campaign it became apparent that the local community perceives the Defence site as having similar environmental and heritage values to that of the adjacent Hill 60 Park and lookout area.

He goes on to outline a very sensible proposal, which has been accepted by the community, that the site be offered to the Wollongong City Council under concessional priority sale arrangements.

I have to ask: what would have happened had our local community not risen in revolt against this proposal to sell the surplus Defence land? If there had not been the community concern, would that land now be in the hands of developers? Is this the way that this government treats intrinsic Indigenous heritage values? Is this the way they are to be assessed and determined—that is, the political pressure that you wield determines whether or not the government finally accepts the merit of Indigenous heritage values? The whole process is very ad hoc. The final decision, although welcomed by the community, is, in my view, a political one that was made in order to pacify community opposition rather than a decision that should have been made on the merits of the case for the retention of the land in public ownership from the start of this campaign in our local community.

So that, just as a little cameo, shows the total inadequacy of the processes that pertain to the preservation of important Indigenous heritage in our country. We cannot allow the process to be determined purely on the basis of political response and counter-response. If the community had not rallied so wonderfully behind the Indigenous community that land might well have ended up in developer hands and been sold, and with it another part of our Indigenous heritage and history would have been lost forever.

It is for those reasons I support the second reading amendment moved by my colleague, the member for Grayndler, which registers our concern at this government’s failure to address many shortcomings in Indigenous heritage protection, as my local case study highlights. We note that it is now 10 years since the Evatt inquiry report and that the government has failed to act on many of its significant recommendations. We believe it is time for a comprehensive review of Indigenous heritage protection along the lines promised by Senator Robert Hill on behalf of this government back in August 2003.

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