Momentum continues to build towards a major reform of cultural heritage laws in Australia. While the nature and timing of reforms, and practical implications for stakeholders, remain unclear, the changes will undoubtedly result in greater federal government involvement in cultural heritage protection (rather than the current state-based approach).
The need for reform to better protect Aboriginal and Torres Strait Islander cultural heritage is widely accepted. Failings in the current regime were highlighted by the destruction of a sacred site at Juukan Gorge in Western Australia as part of a mining project in 2020, and the current reform process emerged from the subsequent inquiry into that event.
The 'Stage 2' consultation process in relation to options for reform is now underway and will conclude in March 2023. This second phase of consultation seeks comment on a Directions Report and Options Paper arising from the 'Stage 1' consultation with government, First Nations organisations and industry bodies during 2022.
The Options Paper identifies three potential approaches to reforming cultural heritage laws:
- New standalone federal laws which apply to all states and territories and override state-based laws. This option would involve the establishment of a new national body representative of First Nations from each state and territory, as well as local First Nations bodies continuing to manage local impacts.
- Federal accreditation of state and territory legislation, incorporating mandatory national standards. This option would require a national body to assess state and territory laws against 'best practice' national standards.
- 'Model' legislation which can be adopted by state and territory governments, where states and territories which have opted into the model legislation become exempt from needing to comply with other relevant federal legislation.
These high-level options do not, as yet, provide the detail required to consider how they would operate in practice for landholders, industry, government or First Nations people. As such, it is difficult to anticipate the practical implications. Ideally, new laws would better identify and protect cultural heritage in a way that provides an efficient process to facilitate appropriate land use. However, whether this will be achieved remains unclear.
The path to reform is likely to continue at pace as a result of the significant political and public will to overhaul cultural heritage laws. Given the risk and uncertainty of future reforms for all stakeholders, those who are in the process of negotiating cultural heritage agreements and management plans, or who may need to do so in the near future, may find it prudent to progress negotiations under their current state-based regime.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
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