Getting there: the resurrection of Aboriginal cultural heritage legislation

When I was CEO of the Tharawal Local Aboriginal Land Council (TLALC) I was privileged to have a team of dedicated aboriginal staff work with me to promote the protection of Aboriginal cultural heritage within the Tharawal region boundaries stretching from the southern and southwestern Sydney area from the south side of Botany Bay, around Port Hacking to the north of the Shoalhaven River (Nowra) and extending inland west to Campbelltown and Camden.

My role at "Tharawal" or "Dharawal" as it is referred to in historical records refers to the original peoples of the region, was to improve and foster the social, economic, physical, and mental wellbeing of its members and all Aboriginal people within the Tharawal LALC boundaries but particularly to improve, protect and foster the best interests of all Aboriginal persons and Culture within the said boundaries.

It is for this reason that the tabling of Rev Hon Fred Nile's latest proposed legislation on the Aboriginal Cultural Heritage Bill 2022 is much welcomed and long overdue.

Many will recall that in May 2020, Rio-Tinto blasted the 46,000-year-old Juukan Gorge rock shelters in the Pilbara region of Western Australia (The Guardian 26 May 2020). The area was sacred to the Puuti Kunti Kurrama and Pinikura peoples. Worse, the Western Australian Government's Aboriginal Cultural Material Committee had approved the seemingly unintended destruction under section 18 of the Aboriginal Heritage Act in 2013.

One could wax lyrical for pages and pages on the need for Aboriginal cultural heritage preservation and reform but suffice it to say that unless there is legislative protection the cultural heritage of Aborigines will be lost – forever. At present, most Aboriginal cultural heritage in NSW is protected and managed under the provisions of the National Parks and Wildlife Act 1974. Those provisions however do not give Aboriginal people enough say over the management of their cultural heritage and further,

• Are outdated and often criticised by both the Aboriginal community, industry, and development proponents,

• Are inflexible and inefficient to administer,

• Do not produce the best heritage outcomes.

What is cultural heritage you ask? In a layman's sense examples include tangible assets such as visual art, food, clothing, and styles of shelter along with intangible assets such as legends, music, and values like dreamtime or respect.

For these reasons, inter alia, the obligation to protect all aspects of Aboriginal heritage arises under numerous international instruments to which Australia is a party, including Article 27 on the International Covenant on Civil and Political Rights. More recently Australia has endorsed the Universal Declaration on the Rights of Indigenous Peoples. Article 11 (1) of the Declaration confirms:

'Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.'

There is also progress following the 2018 Draft Bill and consultation with the Minister for Aboriginal Affairs, the Hon. Ben Franklin, addressing the Aboriginal cultural heritage (ACH) reforms.

All Australians need to work with Aboriginal communities to celebrate, protect and manage Aboriginal cultural heritage in NSW. Whilst at TLALC I recall working with major housing developers to ensure the protection of the Tharawal cultural heritage.

The beauty of Fred Nile's Bill is that it is aimed at preventing the destruction of Aboriginal heritage by awarding true custodianship of sites, objects and remains to a newly created state agency; the Aboriginal Cultural Heritage Council (ACH). The ACH itself designates local services for specific sites, objects and remains of Aboriginal Cultural Heritage and any permits to move, harm or destroy said items must be approved by the ACH in consultation with the local service and Aboriginal stakeholders.

One of the key proposed reforms by Fred Nile is that an Aboriginal Cultural Heritage Council (ACH) is to be established that has the ultimate say on whether or not site, object or remains of Aboriginal heritage may be altered, damaged, or destroyed. The ACH must be comprised of Aboriginal persons of relevant qualifications and experience with an equal gender ratio. The ACH will create local services to manage specification sites, objects and remains.

Further, the Aboriginal Cultural Heritage Bill 2022 seeks to award custodianship of all sites, objects and remains of Aboriginal Cultural Heritage to an Aboriginal Cultural Heritage Council. The future of Aboriginal Heritage must be decided upon by First Nations peoples themselves rather than a political class in which they have little to no representation.

Time for an Aboriginal member of parliament in NSW come 2023. Semper ad Meliora.