There is likely to be experience in other states with the issues generated
by this process and I would be very interested to hear about relevant
legislation, agency practices or any literature. The approach of government
agencies in consulting with indigenous peoples and the veto rights
indigenous people may have over listings or other protective measures are
particularly relevant. North America and New Zealand may well have laws,
policies, practices etc which would be easily assimilated into Australian
government practice or provide good examples of what not to do.
The most relevant Australian legislation is the Australian Heritage
Commission Act 1975, the Aboriginal Land Rights (Northern Territory) Act
1976, and the Native Title Act 1993. The first Act appears not to have
preoccupied the legislative mind when the subsequent two Acts were being
framed.
The Australian experience appears to be that those indigenous people who
have attempted to use the Australian Heritage Commission Act 1975 to
protect sacred sites by placing them on the Register of the National Estate
have found that the operation of the Act is too easily avoided and listing
has offered too little protection against destruction as it only binds the
Australian government.
There has been an absence of conflict between indigenous peoples as owners
of property and the objects of the Australian Heritage Commission in
seeking to conserve and protect the national estate. The Queensland
government attempted to promote such conflict when the wet tropical
rainforests were submitted for the world heritage list. Up until that time
it had denied that the Aboriginal peoples owned the timber on the reserves
they occupied. It subsequently purported to grant them the right to
harvest the timber so that they would argue against the lsiting on the
basis that it would interfere with their right to exploit their onwership
of the timber.
A number of indigenous peoples have taken issue with the right of an
Australian Government agency to list places and objects of significance to
them as a people as it breaches their rights to self-determination. A
number have however nominated places for the Register hoping that the
protection afforded can be translated into orders of Australian courts
which are enforceable against Australian governments and deveopers.