nsw aboriginal heritage legislation reform - dubbo … · aboriginal heritage legislation reform...

NSW Aboriginal Heritage Legislation Reform - Dubbo Workshop 9 December 2011

DELIVERED TO

OFFICE OF ENVIRONMENT AND HERITAGE DARLINGTON, SYDNEY

D

EVELOPED BY

Tania Jones Twyfords Level 1, 156 Keira Street Wollongong NSW Australia Ph: (02) 4226 4040 [email protected]

NOVEMBER 2011

Aboriginal Heritage Legislation Reform – Dubbo Workshop

9 December 2011

TABLE OF CONTENTS

TABLE OF CONTENTS...................................................................................2

1. Background ...............................................................................................3

2. Introduction................................................................................................4

2.1. Workshop Objectives ............................................................................................... 4 2.2. Workshop Process ................................................................................................... 5

3. Workshop Outcomes.................................................................................6

3.1 Workshop Session I .................................................................................................... 6 3.2 Workshop Session II ................................................................................................. 12

4. Next Steps...............................................................................................14

APPENDIX A: List of Workshop Participants .................................................15

APPENDIX B: Workshop Parking Lot ............................................................16

PPENDIX C: Workshop Slide Presentations ...............................................17 A

© TWYFORDS 23 February, 2012 of 17


9 December 2011

1. Background Aboriginal people, mainstream communities and industry groups have long called for

change to the current Aboriginal heritage regime and its enabling laws in NSW. In

response to these calls, the NSW Government has announced a review of the

legislation and is seeking the views of a diverse range of stakeholders to begin a

conversation about how the system could be improved in the future.

At present, the legislative provisions for the protection of Aboriginal culture and

heritage sit under the National Parks and Wildlife Act 1974 (the NPW Act), a piece of

legislation that is primarily about the protection of flora and fauna. Under this Act,

almost all NSW Aboriginal objects are considered ‘property of the Crown’, with the

Director General of the Department of Premier and Cabinet as the legal custodian

responsible for their protection. This model is widely seen as a legacy of another

time, pointing to the need to review the existing laws and explore options for a new

legislative model.

The Office of Environment and Heritage (OEH) has carriage of the reform process

and Phase 1 (November – December 2011) includes a series of regional Aboriginal

community workshops and roundtable meetings with peak industry bodies

(environmental groups, local government, Catchment Management Authorities and

archaeologists).

This report details the submissions and requirements gathered from participants

attending the Dubbo roundtable meeting at Dubbo RSL on Friday 9 December 2011.

It has been prepared by the workshop facilitators - Twyfords. The outcomes listed at

section 3 of this report have been transcribed from the posters prepared by workshop

participants, with some small edits made to assist the reader, such as including full

names instead of acronyms, including the official names of government agencies,

and extending shorthand terms.



9 December 2011

2. Introduction The aim of these workshops is to seek different stakeholders’ views and perspectives

on the issues to be addressed through any new legislation. Feedback gathered

through the initial round of workshops will contribute towards the development of

draft recommendations for legislative reform that will be taken back to Aboriginal

communities and other stakeholders for further public input in 2012.

A diverse range of stakeholders including representatives of community and

environment groups, agriculture, business, Catchment Management Authorities,

archaeologists, local government, the NSW and Federal Governments, and industry

attended the Dubbo workshop. A list of groups and organisations that were

represented at the workshop is set out at Appendix A.

A few questions and issues were raised in the session that could not be

workshopped to completion and have been captured in Appendix B - Parking Lot.

All presentation materials referenced in the workshop have been included in

Appendix C.

2.1. Workshop Objectives

The objectives of the roundtable workshops in support of the Aboriginal heritage

legislation reform include:

• Protect and manage NSW Aboriginal culture and heritage.

• Clarify role of Aboriginal people in management of, and decision-making about

their culture and heritage.

• Create clear roles and responsibilities for Aboriginal people and communities,

heritage professionals, government agencies, and industry.

• Link Aboriginal heritage law to NSW natural resource management and

planning processes.

• Ensure streamlined and flexible regulation of Aboriginal heritage.



9 December 2011

2.2. Workshop Process

The workshop began with a presentation and Q&A with Jason Wilson from Dubbo

Office of Environment and Heritage, on the NSW Aboriginal legislation reform

process.

The first workshop session involved all of the participants working in table groups to

consider a series of questions regarding Aboriginal legislation reform. Participants

were asked to join the question table that most interested them for two different

rounds of dialogue (World Café). Each group recorded their ideas on butcher sheets

for feedback and discussion. The groups’ ideas and responses to the six questions

posed by the reform process can be found in Section 3.1 of this report.

The second session involved the group identifying positive instances of the protection

of Aboriginal Culture and Heritage (Appreciative Inquiry) to determine success

factors required for effective legislation, and supporting process, for the protection

and management of Aboriginal heritage. These success factors and comments are

recorded in Section 3.2 of the report.



9 December 2011

3. Workshop Outcomes

3.1 Workshop Session I

The first part of the Workshop was focused on exploring issues and requirements

relating to the NSW Aboriginal heritage and culture legislation reform.

Questions were allocated to one of three (3) tables and participants were invited to

go to a question table that they felt most strongly about and participate in a dialogue

on the question.

Two rounds of question dialogue were undertaken with the participants (45 minutes

each round). Table transitions were randomised so that workshop participants had

an opportunity to listen to and share their views with a wide cross-section of

representatives.



9 December 2011

Question 1: What specific aspects of Aboriginal culture and heritage do you think should be protected by law?

• Need Aboriginal Community members as part of local council

reference groups. • We need to do more upfront planning and consultation – but

also recognise that this takes time and people. • Need to create more opportunity to talk and trust and to share

and value the same things. • Aboriginal business is core business to council. • Consultation a primary issue particularly when intangible e.g.

spirituality. • Engagement and level of agreement at a local/regional level –

continual review and collaboration. • Some words of understanding about the value of culture –

needs to be stated upfront • Need for continual review based on the impact of changing laws. • Need to be in the ‘right heart and mind’ to value Aboriginal

Heritage and Culture. More of an opportunity to recognise and appreciate each other’s values and history.

• Agree on the definition of culture and value. • A process for managing conflict and having an agreement that is

workable. • Existing infrastructure (agreement) to maintain or replace

Culture – included in the Business Case. • Nudgee consultation process is a working example. • A process for managing conflict and having an agreement that is

workable. Current Processes: Future Processes:



9 December 2011

Question 2: • Who should be responsible for making decisions on protecting Aboriginal culture and heritage?

• What management structures and processes will effectively manage Aboriginal culture and heritage protection in NSW?

Advisory / Decision-making processes

• Assessments should be done by a qualified and appropriate person and not just any community member (big issue).

• Permits and delays (e.g. road grading, time since original road grading).

• Cost issues. • Government and D.G (not a department decision). • Developers. • Councils. • Question: How do you ‘value’ significance? • Political aspects of decisions. • Emergency maintenance issues – clear process. • Community decisions. • Scientific Knowledge. • Cultural Knowledge. • Panel to advise on decisions. • Sensitivity mapping. • Whole area approaches for local/shire councils rather than

individual case by case. • Implementation issues. • Can we define heritage and culture? • Can we define who in the process or management structure? • Aesthetic and cultural significance – hard to capture

(Archaeological significance easier) – balance of decisions. Need support tools.

• Permits and delays (e.g. road grading, time since original road grading).

Management Structures

• Clarify reasons for delays (e.g. Department of Lands). • Communities need dollars and resources to be land managers.

Not enough to do hand over without ability and resources to manage it.

• Training. • Cost Benefit analysis. • Laws and implementation of laws. • Do the right thing (how to enable this?) • National Parks and Wildlife partnerships and initiatives. • Partnerships with Local Community. • Council applications, grants to do the work. • Separate legislation needed. • Identify the spirit of due diligence. • Other legislation we could learn from?



9 December 2011

• Forward planning – strategic plans. • Omnibus bill upping the fines but due diligence in conflict. • Conflicts because of need to identify Vs due diligence (‘not

looking’).

Responsibility • Reaction only (at Development application or after). • Cultural Heritage different to native title (e.g.Jimmy Governer –

different areas and stories). • Effort needed to protect all objects. • Need whole of State coverage – lack of cultural management

plans. • Private land sites and National Parks and Wildlife Services

management. • Due diligence-back doors and loopholes and tick box approach. • Legal instrument required. • Need more than archaeology. • AHMS does not have everything or full accuracy. • Decisions not lining up between LALG, government, department

(legality issues of movement of objects). • Right to support and get past discord – opposing groups provide

excuse to audio issues and consultation. • Existing land use overriding protection (e.g. farming practice). • Significance of items.

Question 3: • Should legislation make a statement about ownership of physical and intangible Aboriginal heritage?

• If you agree that the legislation should address the issue of ownership, how should any new laws address ownership of physical and intangible Aboriginal heritage?

(a) Yes (b) Define in legal terms the Aboriginal perspective / interpretation of

‘ownership’. • Broadening the definition of – Custodians, Land Owner

(traditional), Aboriginal Community, Knowledge Holder, Native Title holder, Land Council, Historical, and CMA etc.

• Look to the models in operation in Northern Territory, Queensland and Victoria.

• Is there going to be a stand-alone ACT? • There can be only one (1) process identified as ‘best practice’ –

Local State Federal. • Country – identify whom? • Aboriginal people should have equal status as the ‘property of

the Crown’. • IP – statement of ‘Country Sovereignty’.



9 December 2011

• Ownership – naming convention? Custodian, we belong to, it is

ours. • Define and sign the principles on the UN Covenant of Indigenous

Rights. • Not a confrontational process – with linkage to cultural law/lore. • Commonwealth Law should not override NSW law. • Physical and intangible Aboriginal Heritage needs to be clearly

defined and documented. • Aboriginal People should be the regulator and determinant of

impacts to objects and places – this applies to land the Crown is custodian of in NSW.

Question 4: • What are your views about who speaks for Country?

• What do you think are the best ways to ensure that the appropriate people speak for Country in public processes including who resolves conflict?

• Should these mechanisms be reflected in legislation or protocols and guidelines?

• Sort this out up front – any new legislation should address this

question first. • It is an Aboriginal responsibility to provide the right people to

speak, not government. • Aboriginal people should be given the responsibility and

resources to determine who should speak for Country. • Legislative processes are in conflict with one another at State/

Federal/Local levels e.g. Native Title Claim process. • Boundary disputes with Nation and Country. • The consultation process needs to be cognisant of the length of

time it takes and recognise the complexity. • Geniality, confidently. • Need to have the process reflect that some projects require

varying levels of consultation e.g. new road Vs maintenance on an existing road; RAMAs routine agriculture management action.

• Need resources to be able to effectively determine who speaks for Country e.g. Land Council.



9 December 2011

Question 5: (a) Do you understand how Aboriginal cultural heritage is protected in legislation and planning instruments?

(b) How could Aboriginal heritage be better protected through land-use plans and other planning instruments?

• Forward planning (Local Environment Planning) recognition of

landscape approach – sensitive areas, values of landscape types as opposed to a register.

• Local and regional assessments. • Cultural change needed at local and regional/state levels to

assess cultural significance upfront. • Community education need to ‘value’ cultural resources. • Non-renewable resource. • Quarantine land for breaches of Act by companies and directors. • Directorships should also be quarantined. • Resources for Aboriginal Heritage commission. • Resources for National Parks and Wildlife signs. • Better way of defining sites rather than dot points on a map –

need to describe landscape.

Question 6: (a) How well do you think current natural resource management processes help protect Aboriginal heritage?

(b) How could Aboriginal cultural values be better incorporated into natural resource management processes?

• Education both ways, Aboriginals and non-indigenous. • Need to define Natural Resource Management – tenures (public,

private and others) and resource management conditions according to tenure types.

• Contract natural and cultural resource management to Aboriginal people / organisations – contractors and services – ‘success breeds success’.

• Definition and operations of Catchment Management Authorities need reviewing to ensure holistic landscape approaches (cultural and natural).

• Current methods / definitions do not look at holistic approaches – need landscape approaches.

• Knowledge about medicines, e.g. use of plants (yam daisies). • Recognition of Aboriginal knowledge is important and should be

utilised, understood, recorded and valued. E.g. where country floods. Supernatural resource!

• Current Natural Resource Management processes do not take in to account Aboriginal practices, i.e. traditional burning.

• May need some negotiations and concessions on all sides to



9 December 2011

reach some outcomes.

• Sets up differing value and management processes between biodiversity values and culture values.

• Natural and cultural values are seen as one and the same by Aboriginal People.

• Natural Resource Management better protected on different tenures (i.e. national Parks -> better protected).

• Catchment Management Authority resilience processes are very good and need to be looked at.

• Protection of natural resources if they have cultural significance.

3.2 Workshop Session II

The second part of the Workshop used Appreciative Inquiry to explore what aspects

of the existing legislation, and supporting processes, worked well in the participants’

experience and would need to be retained and replicated.

Participants were invited to answer the following questions:

Share a story with each other about an example where Aboriginal heritage

and culture was well understood, respected, valued and supported?

1. What contributed to the success of that example?

2. What can we learnt from that experience?

3. What role might legislation play in promoting/ensuring more of these

experiences?



9 December 2011

Two specific cases were shared with the group:

(1) Carved Tree preservation (David)

(2) Yabul Bridge (Jo)

and the following factors for success in managing Aboriginal heritage and culture

were common between the two cases:

• Community recognised the value

• Respect for the legislation

• Local focus

• Mitigation measures

• Worth the time and money - took into account the delays

• Respected the values

• Pre-Planning



9 December 2011

4. Next Steps Throughout November and December 2011 a series of regional workshops have

been conducted with Aboriginal communities and roundtable workshops with peak

stakeholders (property, heritage, environment, local government, industry).

The findings from the Phase 1 round of workshops and written submissions will be

consolidated and will inform the process of review to be undertaken by the Working

Party in February 2012.

Further consultation with Aboriginal communities and peak stakeholders (based on

ideas gleaned from Phase 1) will commence again in April 2012.

The Working Party will report to Ministers in September 2012.



9 December 2011

APPENDIX A: List of Workshop Participants

COMPANIES/ORGANISATIONS/AGENCIES

WHOSE REPRESENTATIVES ATTENDED THE

NSW OFFICE OF ENVIRONMENT AND HERITAGE DUBBO ROUNDTABLE WORKSHOP

9 DECEMBER 2011

Rural Fire Service

Midwestern Council

Ozarkehm

Department of Planning and Infrastructure

Carbonne Council

Blue Mountains City Council

Moolarben Coal

CMA

Peabody Energy



9 December 2011

APPENDIX B: Workshop Parking Lot

DUBBO ROUNDTABLE WORKSHOP

PARKING LOT

9th DECEMBER 2011

DISCUSSION ITEM

1 Reform Timing

• When will the working group be up and running? • When are comments for Issues Paper due?

2 Reform Process

• A request to have the process of law writing explained and able to be involved.



9 December 2011

APPENDIX C: Workshop Slide Presentations


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