National Parks And Wildlife Amendment (Aboriginal Cultural Heritage) Bill
|About this Item||Speakers||Allan Ms Pam
||Business||Bill, First Reading, Second Reading
NATIONAL PARKS AND WILDLIFE AMENDMENT (ABORIGINAL CULTURAL HERITAGE) BILL
Bill introduced and read a first time.
Ms ALLAN (Blacktown - Minister for the Environment) [12.07 p.m.]: I move:
This bill reaffirms this Government’s commitment to reconciliation by bringing the National Parks and Wildlife Act 1974 into line with both Aboriginal and general community expectations on a number of issues relating to Aboriginal cultural heritage. The National Parks and Wildlife Act is the major legislation in New South Wales dealing with the protection of Aboriginal cultural heritage but the provisions dealing with Aboriginal cultural heritage have not been significantly amended since its introduction in 1974. In August 1996, I announced a
number of initiatives in Aboriginal heritage management including a commitment to review provisions of the National Parks and Wildlife Act.
Aboriginal communities in New South Wales have developed a clear expectation that the Government will take positive action to address the long-standing issues of concern to Aboriginal people regarding the management of their heritage. The amendments I propose to the National Parks and Wildlife Act signal the beginning of initiatives to address the concerns of Aboriginal people. The amendments will significantly improve Aboriginal cultural heritage management in New South Wales. Under the existing Act, the term "Aboriginal relic" was used to describe all evidence of Aboriginal culture, from major art sites, to evidence of traditional camp sites and even Aboriginal burials. This bill will change the name "Aboriginal relic" to "Aboriginal item", thus eliminating a term which many Aboriginal people find offensive.
The term "relic" is usually associated with a past era, the remnants of a lost time, but for Aboriginal people these items are not remnants of their past. They are crucial to both their present and their future and are part of their "living culture". To reflect this view and to respect the beliefs of Aboriginal people, it is proposed to change the expression "Aboriginal relic" to "Aboriginal item". The bill also recommends the introduction of the new category "Aboriginal item protection zones". The National Parks and Wildlife Act, as it stands, protects individual items or groups of items but not the areas in which they occur.
For example, I am sure many of my colleagues in this House would be surprised and appalled to learn that while Aboriginal rock art is protected from damage, destruction or defacement, this protection does not currently extend to the cave or rock shelter in which it is found. This new category of Aboriginal item protection zone also better reflects Aboriginal people’s view of their cultural heritage, which places importance not only on the item but the landscape in which it is found.
I am proposing in this bill, through the new category of Aboriginal item protection zone, to provide better protection for Aboriginal items than that which currently exists. Discussions will be initiated between the service and Aboriginal communities on whether significant sites or items need increased protection and, if so, how best to achieve this protection. Based on these discussions, I will make a determination on whether to declare an area an Aboriginal item protection zone, which will have the effect of providing a protective buffer zone around individual items or clusters of items. As a matter of course, consultation will also occur with land-holders on whose property the Aboriginal item protection zone will be declared, unless there are pressing circumstances to do otherwise, such as an imminent threat to the Aboriginal items.
It must be noted that it is envisaged Aboriginal item protection zones will be considered for significant Aboriginal items, or where an Aboriginal item is considered to require added protection through the development approval process. This will not be routinely put in place over all Aboriginal items. In addition, an Aboriginal item protection zone does not necessarily mean that all developments will be precluded within the zone, but may mean that land-holders will have to fulfil certain conditions to protect the important Aboriginal items on their land. Land-holders can also appeal the imposition of an Aboriginal item protection zone in the Land and Environment Court.
These buffer zones will generally be of 25 metres diameter but may be up to a maximum of 50 metres in exceptional circumstances. When an Aboriginal item protection zone has been declared any person who breaches the requirements of the protection zone is liable to a fine of up to 100 penalty units and 6 months imprisonment. If the area is of such a size that even a 50-metre buffer zone would not adequately protect it, then I will give consideration to declaring the area an Aboriginal place under the existing provisions of the Act. Damage or disturbance to an Aboriginal place will attract a penalty of 200 penalty units or imprisonment for 12 months, or both. However, I believe that increasing protection for Aboriginal items is pointless without the ability to enforce it.
Therefore the bill provides for the alleviation of the burden of proof for certain prosecutions. At present, in any prosecution for the destruction of Aboriginal items or places under section 90 of the Act, the National Parks and Wildlife Service must prove that the person knowingly committed the offence or knowingly allowed the offence to happen. This has had the effect of greatly restricting the operation of the provision, and reducing the service’s ability to bring successful prosecutions. The proposed amendment to section 90 of the Act will enable the prosecution of persons who willfully, recklessly or negligently destroy, deface or damage an Aboriginal item or place. This will apply equally to individuals and corporations. This new wording is not intended to catch those people who are genuinely ignorant of the fact that their actions have caused harm to an Aboriginal item or place.
I am sure all members of this House would agree that this level of protection is not only warranted but is required in order to uphold the intent of the Act. To further reinforce the seriousness of this offence I am proposing to increase the penalties under section 90 to 200 penalty units or 12 months imprisonment or both for individuals and 1,000 penalty units for corporations. These new penalties should act as strong deterrents. Apart from those who act in ignorance, some protection is also required for company directors and managers who cannot, in all conscience, be directly blamed for actions which damage an Aboriginal item or place. Through another of the amendments I am proposing, directors and managers of corporations will not be held liable if they can show either that they had no knowledge that the offence was to take place, or had no influence over the action being taken or used all due diligence to prevent damage being caused.
As well as imposing these penalties, the court will, if this bill is enacted, be able to order a defendant who has been found guilty to take action to mitigate or restore the damage caused. I believe this is only appropriate, as monetary penalties do nothing to repair the damage done, or restore an Aboriginal item or place. Not only do we need some means of protecting the Aboriginal items and places that we know of, but it is imperative that we ascertain the existence of Aboriginal items and monitor their condition. At present, section 164 of the Act allows authorised officers to enter premises if there is a reasonable suspicion that an offence has been committed, and that the Aboriginal item which is the subject of the offence is on the premises. The bill will amend this section to allow officers to enter premises to ascertain whether Aboriginal items are actually on the premises.
This authority is currently available in relation to flora and fauna and commonsense would dictate that it should be available in relation to Aboriginal items as well. The rights of the individual will still be protected, however, as the amendment will not override the requirement that if premises are used for residential purposes, officers may enter only if they have a search warrant. An Aboriginal place is an area that is of special significance to Aboriginal people and has been declared so under the Act. As many declared Aboriginal places are on private land it is essential that these are properly maintained and managed. The bill proposes a new section which will allow authorised officers to inspect, from time to time, areas declared as Aboriginal places which are on private land. There is presently no authority under the Act which allows Aboriginal places to be inspected after they have been declared. These periodic inspections will ensure that the integrity of Aboriginal places is maintained.
As many Aboriginal places are on private land, their declaration may place a burden on land-holders in terms of land management. There is also a perception that these declarations may decrease the value of private land. To encourage land-holders to co-operate with the National Parks and Wildlife Service in the declaration of Aboriginal places, it is proposed to allow discounts on council rates for these properties. This would be achieved through a process which would require the Director-General of National Parks and Wildlife to advise the Valuer-General of all Aboriginal place declarations on private land. The Valuer-General could then take this into consideration when valuing these properties. I believe the effect of this provision on revenue generation for individual local councils would be minimal.
There are also two issues relating to the possession of Aboriginal items which I believe need to be urgently addressed. What someone may do with an Aboriginal item is dependent on when it came into a person’s possession. Since 1967 all Aboriginal items, or "relics" as they were previously called, have been deemed to be the property of the Crown, but it was not stated in any succinct way that possession of these items by an individual was not permitted. This bill will make it an offence to possess an Aboriginal item acquired since 1967, except where the item is held by an Aboriginal person in accordance with Aboriginal tradition. This provision does not apply to land-holders who simply may have hundreds of Aboriginal items in situ scattered across their land.
Aboriginal items which were in private hands prior to 1967 were not affected by existing provisions and will also not be affected by this new provision. This has led over the years to many private sales and auctions of Aboriginal items, sometimes to overseas buyers. These items, and therefore a great deal of Aboriginal culture and history, are being lost not only to Aboriginal people, but to the whole of Australia. I therefore propose that the National Parks and Wildlife Act be amended to require owners to notify the Director-General of National Parks and Wildlife of their intention to sell or dispose of Aboriginal items and to provide the director-general with the first option to acquire the item.
Acquisition will not be done on an ad hoc basis and without consultation. Prior to acquisition the director-general will be required to consult with
the Department of Aboriginal Affairs, the Australian Museum, the New South Wales Aboriginal Land Council and the Aboriginal and Torres Strait Islander Commission to ensure significant items are retained. However, I assure my colleagues that this will not stop Aboriginal items being gifted or bequeathed to museums by private donors. The amendment only requires notification and an option to acquire. The director-general will have the discretion, after proper consultation, to allow the gift or bequest to take effect.
However, I note that the Australian Museum, under the leadership of its former Director, Des Griffin, has been at the national forefront in returning its Aboriginal collections, and parts of them, to traditional communities, in keeping with the strong international movement to ensure that that occurs. It is the aim of this Government to ensure that as many Aboriginal items as possible should be returned to their traditional owners. It has been, and will remain, the policy of the National Parks and Wildlife Service to return, whenever possible, Aboriginal items to their traditional Aboriginal owners.
The amendments contained in this bill, as outlined, will close some of the gaps in the current legislation, and offer a greater degree of protection to Aboriginal items and places. The Aboriginal Cultural Heritage (Interim) Advisory Committee, which was formerly known as the Relics Committee, has already been reconstituted to allow more representation from the Aboriginal community. This committee is the principal advisory body in relation to the preservation, excavation, removal and custody of Aboriginal items and places, and furnishes advice to myself and the director-general of the service.
With this bill before the House, and because the term of appointment of some members has expired, it is timely to look at the membership and functions of the committee and make changes required to bring it into line with Aboriginal community wishes on Aboriginal cultural heritage management. I propose in this bill to change the name to the Aboriginal Cultural Heritage Advisory Council with a membership of 11, drawn from various areas. These would include six Aboriginal community members, one nominee from the New South Wales Aboriginal Land Council, one officer of the National Parks and Wildlife Service, one officer of the Department of Aboriginal Affairs, one officer from the Australian Museum, one officer from the Heritage Office and one ministerially appointed Aboriginal representative.
As well as the areas of responsibility that I have already mentioned, it is proposed that the council should also be responsible for providing advice on issues pertaining to licensing agreements relating to Aboriginal cultural heritage data and information; and for providing advice on nominations of national parks to be transferred to the Aboriginal community under the National Parks and Wildlife (Aboriginal Ownership) Amendment Act. The restructuring of this committee would ensure that all major stakeholders are given a forum from which they can provide advice to the Government and to the National Parks and Wildlife Service on issues of major importance to Aboriginal people.
It is the belief of this Government that action should be taken now to protect Aboriginal cultural heritage. The Government has already acted - both efficiently and comprehensively - under the National Parks and Wildlife (Aboriginal Ownership) Amendment Act to begin the process of returning national parks to traditional owners with the successful transfer finalised only three weeks ago at Mootwingee, now Mutawintji National Park, in western New South Wales. The Government has acted on its commitments to Aboriginal people to bring forward these amendments. I take this opportunity to note that the honourable member for Keira, the Parliamentary Secretary for Aboriginal Affairs, is in the Chamber. It is largely as a result of his efforts that this legislation is now before the Parliament. Since he became a member of Parliament and particularly since he became a member of the Government shadow ministry, he has been a strong advocate in this place on behalf of the Aboriginal people.
The honourable member has spent a large proportion of his parliamentary career in the past 10 years travelling around the State and listening to the express wishes of the Aboriginal people. This measure results from the strong theme put to him by various communities across the State. As a result of finally referring this matter to the National Parks and Wildlife Service, and its work in conjunction with other agencies within government, the Government has brought forward a series of amendments that very much meet the expectation of those traditional communities. I look forward to support in this Chamber and the other Chamber for these amendments. I certainly look forward to their successful application.
Debate adjourned on motion by Mrs Chikarovski.
That this bill be now read a second time.