Ask First
Ask First
Ask First
MESSAGES 1
INITIAL CONSULTATION 8
• Identify Traditional Owners and other Indigenous people with
rights and interests in the area
• Identify non-Indigenous people with rights and interests in the area
• Meet with relevant Indigenous people to describe the project or activity
• Agree on a process for addressing Indigenous heritage matters
• Arrange a meeting of all stakeholders to discuss the project or activity
and agree who will undertake work
• Dealing with disputes
By using this guide and working together, we can ensure that the rights
and interests of Indigenous people in maintaining their heritage is
accepted and respected. I have no doubt that in doing so, all Australians
will benefit.
Tom Harley
Chairman
Australian Heritage Commission
The Commission would appreciate feedback from those who use the
guidelines. Feedback can be e-mailed to [email protected].
Dr Gaye Sculthorpe
Commissioner
Australian Heritage Commission
2
Background and Definitions
Ask First’s consultation guidelines are divided into five sections. The first
section describes the background to the publication and provides
definitions for some of the terms used. The next section describes the
purpose of Indigenous heritage conservation and provides a few key
principles on Indigenous heritage conservation. The main part of the
document is the consultation and negotiation process, which is set out
in the third section. The fourth section is a bibliography and the final
section lists Commonwealth, State and Territory heritage contacts.
Aboriginal hide for hawk hunting,
The consultation and negotiation process is divided into three major
Keep River National Park, NT.
stages: Initial Consultation; Identifying Indigenous Heritage Places and
Values; and Managing Indigenous Heritage Places. Each stage is divided Source: Skyscans Australia
Indigenous heritage places are landscapes, sites and areas that are
particularly important to Indigenous people as part of their customary
law, developing traditions, history and current practices. All Indigenous
heritage places have associated Indigenous heritage values.
4
Indigenous Heritage Conservation
PURPOSE
Indigenous heritage conservation and management aims to sustain the
relationship between Indigenous people and their heritage places in
such a way that the heritage values of each place are maintained for
present and future generations of all Australians.
Indigenous cultural heritage exists throughout the lands and waters of Australia and all
aspects of the landscape may be important to Indigenous people as part of their heritage
Source: Aboriginal Areas Protection Authority
I N V O LV I N G I N D I G E N O U S P E O P L E
Consultation and negotiation are central to the Indigenous heritage
management process outlined in this document. It is important to
recognise that Indigenous people often have a broad range of issues
that they need to address and your project or activity may not be an
immediate priority. Negotiating the level of involvement of the relevant
Indigenous people is an important part of the early negotiation process.
6
The Indigenous Heritage
Management process
FIG.1 PROCESS FOR IDENTIFYING AND MANAGING INDIGENOUS HERITAGE PLACES
Arrange a meeting of all stake holders to discuss the project or activity and agree
who will undertake work
Revise proposed
project or activity CHECKPOINT
or decide not to Ensure that the relevant Indigenous people
proceed with are actively involved and identify their heritage
project or activity. places and values.
CHECKPOINT
Meet with all stakeholders to identify constraints on managing identified heritage places and values.
Implement and review outcomes with relevant Indigenous people and other stakeholders.
ACTIONS
• Establish if Indigenous people agree to the project or activity.
• Accept that Indigenous people may not articulate the reasons for opposing a
project or activity particularly where it may impact on an important heritage place.
HINTS
• Consider applying the precautionary approach where Indigenous people do
not support the project or activity, recognising that Indigenous people may use
State/Territory legislation to protect their heritage.
• Revise the project and return to the checkpoint at phase two.
ACTIONS
• Identify Indigenous people with rights and interests in a place,
especially Indigenous people authorised to speak for a place,
taking into account that Indigenous people will have differing
degrees of knowledge about heritage places and their importance.
• Ensure both men and women with rights and interests in the area
are identified because men and women may be responsible for
different heritage places and values.
• Identify Indigenous people who may not necessarily be Traditional
Owners but who have interests in an area so that any effects of the
project or activity on the Indigenous heritage values of places such
as mission stations and historic buildings will be identified.
• Investigate whether the interests of Indigenous people from
surrounding areas may also be affected by a project or activity. For
example activities that affect water flows will require consultation
with communities downstream of the project or activity.
• Identify and adhere to any process or protocols that Indigenous
people have established for consultation.
• Undertake consultation for each new project unless Traditional
Owners and other interested Indigenous people agree that this is
not necessary.
HINTS
• Aboriginal Land Councils, Regional ATSIC offices, state heritage
agencies, State Aboriginal Affairs offices/departments, the National
Native Title Tribunal, Native Title representative bodies, Native Title
claimants and Prescribed Body Corporates under the Native Title
Act, can provide advice on how to identify the relevant authorised
and other Indigenous people with interests in a place.
• It may be appropriate for separate male and female teams to
undertake consultation.
• It is advisable for the project team to develop a relationship with
the relevant Indigenous people and not leave this solely to paid
consultants.
8
IDENTIFY NON-INDIGENOUS PEOPLE WITH RIGHTS AND
INTERESTS IN THE AREA
ACTIONS
• Identify other landowners, lessees, local councils, State/Territory
Government agencies and Commonwealth Government
departments and in some cases tourist and recreational groups
who have rights and interests in the area.
ACTIONS
Make the description of the project or activity factual and clear.
Remember to:
• outline any potential implications of the project (financial,
cultural, environmental, educational and others);
• any prior discussions and agreements with third parties (eg State
agencies) and other stakeholders (Indigenous and non-
Indigenous) that need to be consulted, Provide people with any relevant
• provide people with any relevant documentation, including maps documentation, including maps of the area
of the area being discussed; being discussed
• allow time for Indigenous people to decide whether they wish to
Source: Aboriginal Areas Protection Authority
become involved in the activity or project;
• check on whether you need to describe the project to other
Indigenous groups. Ensure that all Indigenous groups receive the
same information and that this is sufficient for them to provide
informed consent; and
• respect Indigenous people’s right to choose the time and location
of the meetings.
HINTS
• Offer assistance with mediation where more than one group has
an interest in or traditional links to an area. This may assist in
obtaining agreement as to who needs to be involved in the
project.
• Where groups are in dispute, focus on developing ways of Large, medium and small projects may affect
protecting heritage that can be agreed to by all parties. Indigenous heritage places and values.
• It may be appropriate for this consultation to occur in smaller This housing subdivision is an example of a
groups rather than large meetings. medium sized project.
Source: Aboriginal Areas Protection Authority
ACTIONS
• Agree on the manner, timing and level of consultation and
involvement required for the project.
• Decide who will hold copyright over any work undertaken with
Indigenous people to identify or establish management regimes for
Indigenous heritage places.
• Decide whether separate reports should be produced for male
and female Traditional Owners and another that is open access
(has restricted information removed).
• Determine whether there is a need to help resource the
dissemination of the results of any work, the process for
obtaining comment from Indigenous people on reports and how
many copies of the final report are required.
• Agree on processes for obtaining informed consent from
Indigenous people to display any information gathered, including
publishing on the Internet.
• Formalise any protocols and agreements.
• Involve Indigenous people in developing Terms of Reference for
any consultancies.
• Include Indigenous people in selection processes for any
consultants and seek their agreement to the appointment of
specialists employed on the activity or project.
• Identify the resources required to maintain community
involvement (for example arranging travel to meetings, payments
for surveys).
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ARRANGE A MEETING OF ALL STAKEHOLDERS TO DISCUSS
THE PROJECT OR ACTIVITY AND AGREE WHO WILL
UNDERTAKE WORK
ACTIONS
• Arrange an early meeting of all the identified stakeholders to
provide a forum where Indigenous people can explain issues
relating to Indigenous heritage to non-Indigenous stakeholders.
Such a meeting also helps to ensure that Indigenous issues are
made visible to the wider community and recognises the need to
negotiate with Indigenous people.
• Agree upon processes for mediating and resolving disputes
between parties that may arise during the course of the project
(see Dealing with Disputes below).
• Consider adopting a precautionary approach in cases where
Indigenous people refuse to be involved in a project. This prevents
the possibility of damage or desecration to any Indigenous heritage
places and the resultant incurrence of substantial penalties.
HINTS
• State heritage agencies can help identify any reporting or
legislative requirements. Representatives from these agencies
should be involved in meetings
ACTIONS
• Include previous Indigenous cultural heritage and resource
surveys in any background research.
HINTS
• Relying solely on information about Indigenous heritage contained
in Government registers is not adequate as this information is
rarely comprehensive.
• A project should not rely solely on previous work to establish
Indigenous heritage values, as Indigenous people may not
disclose the existence of some heritage places unless there is a
serious and immediate threat of injury or desecration.
• Information can be sought from a number of organisations
including local Indigenous organisations, the Australian Institute
of Aboriginal and Torres Strait Islander Studies (AIATSIS), Native
Title representative bodies, State heritage agencies and Local
Government.
Always ask Indigenous people about their heritage – the Katawili or Dunna Dunna
plant is significant to the Ngalia people of Western Australia as part of a ‘Dreaming’.
Source: The Department of Agriculture, Western Australia
The resistance to letting Aboriginal people swim in the Moree pool during the
1965 Freedom Ride made it a symbol of the discrimination Aboriginal people
experienced in rural towns before the 1967 referendum.
Source: AHC Collection
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ENSURE THAT THE RELEVANT INDIGENOUS PEOPLE ARE
ACTIVELY INVOLVED AND IDENTIFY THEIR HERITAGE
PLACES AND VALUES
Indigenous involvement in identification processes may be the only
way to establish the location of ‘Dreamings’, totemic obligations,
traditional food, medicine and material culture resources particularly as
there may be no obvious physical evidence for past or present
Indigenous use at these places. It is also the only way in which the
value of a place for Indigenous people can be established.
ACTIONS
• Ensure compliance with State/Territory and Commonwealth laws
by obtaining necessary permits for surveys and other activities
required to identify Indigenous heritage values.
• Ensure that sensitive information disclosed in the course of
identifying Indigenous heritage places and values is protected
from unnecessary further disclosure.
• Record the name of custodians of information where they have
more specific information about places and values.
HINTS
• Indigenous people are likely to describe the importance of a
heritage place in general terms (eg it’s that tree, it’s a law place,
it’s part of women’s business, it’s a burial place, it’s important
because there are lots of medicines here, this is where our
ancestors lived or this is the mission where I was taught).
They may also avoid discussing heritage places and values
because of cultural sensitivities, and this may be particularly true
for very important spiritual places.
• Advice on permits can be obtained by contacting the relevant
State/Territory heritage agency or Office of Aboriginal Affairs. Indigenous heritage may be found
• It may be appropriate for Indigenous males and females to on land or water – the remains of an
separately undertake the identification of heritage values and Indigenous fish trap
places. Source: Chrissy Grant
ACTIONS
• Respect that Indigenous people may need time to reach a
consensus on appropriate conservation and management.
• Understand that Indigenous management of heritage places may
maintain or rehabilitate any or all of the following: Indigenous
customary law, the relationships with land and water, the
physical material at a place as well as plant and animal diversity.
• Establish any values and issues that cannot be discussed in an
open meeting of all stakeholders.
HINTS
Indigenous management requirements could cover issues like:
• protecting culturally restricted information;
Repatriation of cultural material • removing and/or storing cultural material; and
• repatriation of material removed from the area for analysis.
Source: Koori Mail
ACTIONS
• Ensure consultation with other property owners, residents, local
shires and in some cases tourist and recreational groups, as well
as Traditional owners and Indigenous people with an interest in
the area.
• Inform all groups of the heritage, social and economic values so
they can take these into account when discussing management
requirements.
• Provide ongoing access to and management of heritage places by
Traditional Owners and other interested Indigenous people
which may be essential for maintaining the Indigenous heritage
value of the place.
• Apply the precautionary approach when there are differing
opinions among Indigenous people about the importance of a
place. Do not allow use of a place that is incompatible with one
group’s understanding of the heritage values of a place.
• Comply with Commonwealth and State/Territory laws and
identify the full range of legal obligations that may relate to
Indigenous heritage and other legal rights.
Continued over
14
HINTS
Management issues that may need to be discussed or resolved by
all stakeholders include:
• employment of Indigenous people at a place where there are
significant Indigenous heritage values;
• implementation of cultural awareness training for non-Indigenous
people employed working with Indigenous heritage;
• resolve health, safety and Indigenous community development
issues.
• access for Indigenous people (getting people on country,
providing for ceremonies and educating the young);
• use of Indigenous resources; and
• access rules for non-Indigenous people including what activities a
developer, researcher or other non-Indigenous land user can
undertake at a place.
• procedures for mediation and dispute resolution.
Example of signs that show restrictions
Management arrangements are not completed until some form of
on access to places
formal agreement has been reached between all the relevant parties.
Source: Aboriginal Areas Protection Authority
ACTIONS
• Ensure all parties agree to monitoring mechanisms and apply
them to management arrangements.
• Provide for management arrangements to be reviewed and if
necessary
amended in the light of changing circumstances.
HINTS
• Indigenous people may want to monitor cultural impacts, ground
works or disturbance and undertake any other measures for
Indigenous people monitoring ground
conserving the heritage value of a place.
disturbance for cultural impacts
• Understand that Indigenous people may also seek advice from
Source: Aboriginal Areas Protection Authority
Heritage or Land Managers to address specific management issues.
MAINTENANCE
Actions that serve to keep the existing Indigenous heritage values of
a place.
EXAMPLES OF MAINTENANCE
• Restricting access by particular categories of people to some
places may be required to maintain Indigenous customary law.
• Allowing Indigenous people access to places so ceremonies and
other management practices can take place.
• Allowing access to traditional resources (eg food, ochre or plants)
may be important in its own right or may be necessary for
maintaining other cultural activities (eg ceremonies).
• Monitoring sensitive Indigenous places to ensure visitors treat them
with respect.
• Recording and passing on stories about a place so that the next
generation learns about its heritage value.
• Keeping natural processes (for example, water flows) that are an
integral part of the significance of a place.
• Cleaning country by removing rubbish, introduced plants and
other foreign material from areas. This may also include burning
areas of country.
• Monitoring of earth disturbance to ensure past Indigenous camp
sites are not disturbed.
• Painting at traditional art sites to ensure that law and tradition are
maintained.
• Maintaining and using structures related to events in Indigenous
peoples history (for example, cemeteries, mission buildings,
Indigenous settlements and sites of protest).
Access to areas with grasses and sedges is necessary for the making of traditional
Indigenous baskets
Source: Skyscans Australia
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RESTORATION
Actions that conserve or add to the heritage value of a place.
EXAMPLES OF RESTORATION
• Trapping sand and revegetating to cover burials that are eroding
out of the ground.
• Repatriating (returning) material to the place where it was found to
conserve the heritage value of this material for Indigenous people.
• Reintroducing ceremonies to places.
• Using traditional or other knowledge to rebuild places such as
stone arrangements and fish traps that have fallen into disrepair.
• Repairing significant historic structures.
REMOVAL
Actions to conserve heritage values by removing items from a place.
This is normally a measure of last resort.
EXAMPLES OF REMOVAL
• Excavating an Aboriginal site that will be destroyed by
development so that material is not lost.
• Relocating or storing cultural material to ensure its protection.
Note that the removal of material to a keeping place may be a
permanent measure or an interim measure while decisions are
made about repatriation.
EXAMPLES OF INTERPRETATION
• Interpreting the significance of a Dreaming place to ensure
culturally appropriate behaviour of visitors.
• Recording oral history about a mission and the people who
lived there.
Central and Northern Land Councils 1995, Our Land, Our Life:
Aboriginal Land Rights in Australia’s Northern Territory. Darwin and
Alice Springs.
18
Evatt, E. 1996, Review of the Aboriginal and Torres Strait islander
Heritage Protection Act 1984. Canberra.
Jonas, B, Langton, M. and AIATSIS staff 1994, The Little Red, Yellow and
Black (and green and blue and white) Book: A short guide to
Indigenous Australia. Canberra.
Kimberley Land Council. nd. MoU and model agreement for use with
mineral exploration companies. Unpublished.
SOUTH AUSTRALIA
NEW SOUTH WALES
Department of State Aboriginal Affairs
National Parks and Wildlife Service Phone (08) 8226 8900
Phone (02) 9253 4600 www.dosaa.sa.gov.au
www.npws.nsw.gov.au Aboriginal Heritage Act 1988
National Parks and Wildlife Act 1974
Department for Environment and Heritage
NSW Heritage Office Phone: (08) 8204 1910
Phone (02) 96356155 www.environment.sa.gov.au
www.heritage.nsw.gov.au Heritage Act 1993
NSW Heritage Act 1977
20
TA S M A N I A OTHER
Department of Primary Industry, Water and O R G A N I S AT I O N S
the Environment
Australian Institute of Aboriginal and Torres
Phone (03) 6233 8011
Strait Islander Studies (AIATSIS)
www.dpiwe.tas.gov.au
Phone: (02) 6246 1111
Aboriginal Relics Act 1975 www.aiatsis.gov.au
Historic Cultural Heritage Act 1995
Aboriginal and Torres Strait Islander
Commission (ATSIC)
Phone: (02) 6121 4000
VICTORIA www.atsic.gov.au
Heritage Victoria
Phone: (03) 9655 6519
www.heritage.vic.gov.au
Heritage Act 1995
WESTERN AUSTRALIA
Department of Indigenous Affairs
Phone: (08) 9235 8000
www.aad.wa.gov.au
Aboriginal Heritage Act 1972
22
IDENTIFYING INDIGENOUS
H E R I TA G E P L A C E S A N D
The views expressed in this guide are not necessarily those of the Commonwealth of
Australia. The Commonwealth does not accept responsibility for any advice or information VA L U E S
in relation to this material.
© Australian Heritage Commission 2002
Reprinted 2002 Undertake background research.
Information presented in this guide may be reproduced in whole or in part for study or
training purposes subject to the inclusion of acknowledgement of source and provided no
commercial usage or sale of material occurs. Reproduction for purposes other than this Ensure that the relevant Indigenous people
requires the written permission of the Australian Heritage Commission. Requests for are actively involved and identify their
permission should be addressed to the Executive Director, Australian Heritage Commission, heritage places and values
GPO Box 787, Canberra ACT 2601.
The text was written by staff of the Indigenous Heritage Section of the Australian Heritage
Commission in consultation with Commissioner Dr Gaye Sculthorpe, James Atkinson, CONTINUE ONCE INDIGENOUS PEOPLE AGREE
Greg Brown, Rodney Gibbins, Michelle House, Dr Bill Jonas, Dr Marcia Langton,
THE PROJECT DOESN’T HAVE AN UNACCEPTABLE
Greg Lehman, Tony McAvoy, Victor McGrath, Kado Muir, Donna Robb, Graeme Smith,
Wayne Wharton and Michael Williams. IMPACT ON HERITAGE; OTHERWISE CONSIDER
Designed and typeset by: Di Walker Design, Canberra. 720 NOT PROCEEDING OR REVISING THE PROPOSAL.
Printed by: National Capital Printing, Canberra. WHEN A PROJECT OR ACTIVITY IS REVISED
Questions, comments and case studies should be emailed to [email protected] RETURN TO STAGE 3.
Recommended as best practice for preparing a PER or EIS under the Environment
Protection and Biodiversity Conservation Act when Indigenous consultation is required.
ACKNOWLEDGEMENTS
The Australian Heritage Commission would like to acknowledge the assistance of
Mr Dave Johnston of Australian Archaeological Survey Consultants for undertaking the
public consultation process for this document. The Australian Institute of Aboriginal and
Torres Strait Islander Studies and the Department of Communication and Arts (now
The Department of Communication, Information Technology and the Arts) generously
provided the funding for publication.
MANAGING INDIGENOUS
National Library of Australia cataloguing-in-publication data:
Ask First: A guide to respecting Indigenous heritage places and values
H E R I TA G E P L A C E S
Bibliography.
ISBN 0 642 54842 0 Identify any special management requirements