BY AMY MCQUIRE, FEBRUARY 11, 2013
Originally published in Tracker Magazine.
NSW Aboriginal affairs minister Victor Dominello (L) and NSW Environment Minister Robyn Parker have committed to standalone Aboriginal culture and heritage laws (AAP IMAGE/ TRACY Nearmy)
NEW SOUTH WALES: The NSW Greens have called on the state government to publicly release a report into Aboriginal culture and heritage, four months after it committed to standalone legislation.
The working party, set up to consider standalone laws by Labor in 2010, has provided its report to Environment minister Robyn Parker, the Greens say.
But it is yet to be released publicly, as promised by Ms Parker in estimates in October.
Currently, New South Wales is the only state without separate legislation for the protection of Aboriginal culture and heritage.
That protection is bundled under the National Parks and Wildlife Act, a situation recently declared as “repugnant” by state Aboriginal affairs minister Victor Dominello.
Peak Aboriginal bodies in the state, like the New South Wales Aboriginal Land Council (NSWALC) (the publisher of Tracker) have consistently called for standalone legislation. Labor first promised the legislation when it tabled the Aboriginal Land Rights Act in 1983.
In October, Ms Parker told an estimates committee she was committed to delivering it in the government’s term in office.
She said she awaited an outcome of the working party report.
“They will give me the report shortly and I am trying to work out the exact timeline… given the way in which this has occurred so far is that we have had extensive consultation, we have a report that will make recommendations.
“I will make that public and make a recommendation to Cabinet and we will see where we go from there.”
NSW Greens MLA David Shoebridge told Tracker he understood that report had been provided to the minister.
“There are strong hopes that (the report) sets in place a solid framework to place Aboriginal knowledge keepers and Aboriginal elders in a central decision making place on heritage questions,” Mr Shoebridge told Tracker this month.
Mr Shoebridge said the process had been “riddled with delays from day one” and called on the state government to make the report public.
“It is little surprise to find yet more delay, even in this late stage. But the Greens remain hopeful that the minister will live up to her commitment and comprehensively and positively reform Aboriginal heritage legislation.”
“…It’s an outrage that Aboriginal heritage laws are contained in the National Parks and Wildlife Act, effectively equating Aboriginal people with flora and fauna and as a matter of principle, that needs to be changed.
“But just spinning existing laws into a standalone act won’t help. Laws need to be fundamentally reformed. We need to replace government bureaucrats with the Aboriginal community as the key decision makers.”
The vulnerability of Aboriginal culture and heritage in New South Wales was again highlighted following the destruction of a significant Aboriginal site in Cromer, on Sydney’s north shore, two years ago.
The site was allegedly damaged in December 2010 by subcontractors for Ausgrid.
Macaya Electrical Services allegedly cut through a large carving of a footprint, situated on the side of a road while laying electrical cables.
It was one of the most significant Aboriginal sites on the north shore. It is now destroyed and there has been little preservation.
Ausgrid sub-contracted the work to Macaya but has apparently denied any liability over the damage.
The case is particularly significant because it is one of the first cases to be tested under amendments made in 2010 to the National Parks and Wildlife Bill 1974 which introduced a new “strict liability” offence.
This enables the department to prosecute over damage to an Aboriginal heritage site, even if the site was damaged unknowingly, and has also substantially increased penalties for offences under the Act.
An individual can be fined up to $22 000 for damage to an Aboriginal site, while a corporation can be fined up to $1.1 million. OEH is prosecuting under section 86(2) of the National Parks and Wildlife Act for harming an Aboriginal object.
This means that the maximum penalty if convicted is $220,000, rather than $1.1 million if it was charged under section 86 (1) of the act.
But Mr Shoebridge said the OEH was prosecuting the two subcontractors of Ausgrid, under the lesser charge.
“We’ve seen the existing heritage laws used to systematically destroy heritage rather than protect heritage, even when there are clear cases of conscious and open destruction of Aboriginal heritage.
“At best we see weak prosecutions run, and the most recent example of that was the destruction of Aboriginal heritage at Cromer… where a lesser charge was run against the subcontractors, but the statutory authority who ought to have known, and did know about the existence of the heritage item, walked free.”
“… I think it’s an outrage the only people who are prosecuted have been two subcontractors sent in with little or no supporting paperwork and been prosecuted under strict liability when the utility who sent them there, and on notice, has escaped a penalty.”
Mr Shoebridge says New South Wales should not allow further destruction of a priceless heritage.
“New South Wales governments have traditionally taken the view that Aboriginal heritage is disposable, and yet it is the longest continual record of human civilization anywhere on the planet. If these treasures and these cultural riches were in Paris, or Rome or in London, they would be preserved, protected and privileged. But in New South Wales they are jackhammered and bulldozed.”