Push to centralise Indigenous heritage powers jeopardises property rights

13 January 2010

Australias urban development laws will get even more convoluted if the federal Environment Department gets it way on new Indigenous heritage laws, according to the Urban Taskforce.

The Taskforces chief executive, Aaron Gadiel, said that the Department was pushing for all Indigenous heritage laws to come under its control.


Centralising Indigenous heritage decisions in Canberra, while leaving other land use regulation with the states, will be a recipe for disaster, Mr Gadiel said.


Late last year the Federal Government released a discussion paper, Indigenous heritage law reform, which contained 15 proposals for a radical overhaul of laws protecting Aboriginal and Torres Strait Islander heritage.


The Urban Taskforce has today released a report analysing the proposal for their implications for private property rights and the pace of urban development.


Mr Gadiel said that anyone who cares about the right of private individuals to own property should be alarmed at the Environment Departments proposals.


The current federal law – the Aboriginal and Torres Strait Islander Heritage Protection Act – is ˜last resort legislation, Mr Gadiel said.


It can only be invoked when the extensive state and territory legislation has failed and other Commonwealth legislation does not apply.


Most famously the law was used by the Keating Government to try to block the construction of the Hindmarsh Island Bridge in South Australia.


Now the Federal Governments Environment Department wants to make the legislation a powerful tool to govern all Indigenous heritage across Australia even heritage located on private property, Mr Gadiel said.


The Department wants to amend the law so the Federal Government can easily intervene and stop development projects.


It will do this by stripping away the existing rules which limits use of the legislation to places and objects of special significance and will apply the law more generally to almost all traditional places and objects.


This means places or objects of peripheral traditional significance will still attract the full weight of federal law.


Middens – mounds containing shells, animal bones and other material – can be found across Australia on private land.


The presence of middens and stone artefacts will mean a very large number of greenfield development projects currently regulated by state and territory Aboriginal heritage laws would be subject to Canberras control.


Canberra would have the power to issue declarations prohibiting activities or uses on privately owned land even existing longstanding activities could be barred.


Mr Gadiel said that the reforms would coerce state governments to revise their own Aboriginal heritage laws – because of the threat of greater federal intervention in day-to-day decisions if states do not comply.


The Environment Department wants rules protecting property owners in state heritage laws to be repealed, Mr Gadiel said.


The goal posts will be moved so that it will be harder for a private land owner to make a case to develop their land.


The need to stop or prevent impact on Indigenous heritage will be elevated ahead of other important public policy objectives.


This will prevent regulatory decisions being made in an integrated way without fairly balancing the social, economic and environmental costs and benefits.


It will allow government to prevent the use or development of private land but bar owners from telling media, industry organisations, parliamentarians, lawyers and others the reasons that they are being disenfranchised from the right to use their property.


Not-in-my-backyard (NIMBY) activists would be given wide-ranging power to litigate the merits of government decisions in the courts.


Mr Gadiel said it was even proposed that Indigenous groups would be directly compensated by private land owners.


Any penalties in relation to violation of the Act should be payable to the government only, he said.


If theres an obligation to pay money to third parties you are effectively giving those third parties a property right. This law has never been about conferring land rights or native title and it should not be confused with such legislation.


The Urban Taskforce is a property development industry group, representing Australias most prominent property developers and equity financiers. For every $1 million in construction expenditure, 27 jobs are created throughout the broader economy.



Download PDF Version