Apart from some specific issues of detail and concern, the proposed changes to the Aboriginal Heritage Act 1988, reflected in the Aboriginal Heritage (Miscellaneous) Amendment Bill 2016, are positive.
Yesterday the State Government introduced a Bill proposing far reaching changes to the Aboriginal Heritage Act 1988.
The main features of the Bill are:
- the requirement for the Minister to delegate to traditional owners his functions to give authorisations under the Act, if requested by the traditional owners, is to be deleted. Under the transitional provisions any pending delegation request will be void and any existing delegation taken to be revoked;
- provisions for the Minister to establish guidelinesin relation to the operation of the Act (subject to prior consultation with the Heritage Committee). No detail is provided in the Bill as to the content of the proposed guidelines;
- the creation of Recognised Aboriginal Bodies (RABs) for specific areas or specific Aboriginal site(s), object(s) or remains. RABs are to be appointed in the following way:
- a RAB must be a body corporate (although there are some references in the Bill which suggest individuals could be);
- Anangu Pitjantjatjara Yankunytjatjara and Maralinga Tjarutja are the automatic RABs for the APY and MT lands;
- in principle, a registered native title body corporate will be the RAB for the area of the native title determination (including land in that area where native title has been extinguished). However, such an appointment must be approved by the Heritage Committee who “may refuse to approve an appointment for any reason the Committee thinks fit”.
It is accepted that Aboriginal groups may have separate bodies representing them in relation to heritage and native title matters which may mean that a registered native title body corporate is not the appropriate RAB for a native title determination area. Having said that, the Heritage Committee’s discretion in this regard appears to be unduly broad.
- A registered native title body corporate may also elect not to be the RAB for the whole or part of a determination area, or specified sites, objects or remains within the area. In this case it would assist if the registered native title body corporate’s right in this regard were conditional on it nominating a replacement RAB for approval by the Committee;
- the Committee may on application appoint registered native title claimants or an Aboriginal party to an ILUA as RAB for the relevant claim or ILUA area. The Committee also has a more general right to appoint anybody as RAB for specific areas or specific Aboriginal site(s), object(s) or remains. In this case and that of an ILUA the relevant area must not be within the APY or MT lands nor be an area in respect of which a registered native title body corporate has already been appointed as the RAB;
- where the Committee receives more than one application for appointment as a RAB, it must give priority to the applicant that “the evidence suggests has the strongest affiliation with, and responsibility for, the relevant area, site, object or remains, in accordance with Aboriginal tradition”.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.