Difficulties with Enforcement of Heritage Conservation Laws

Document Type:Essay

Subject Area:Other

Document 1

Heritage conservation laws exist in all Australian states. As a consequence, just like any other state-based laws, there has always been a lack of uniformity and thus integration among states leading to a lack of a national direction. In addition, the laws themselves have shown to focus more on economic value rather than the value that the heritage holds to the aboriginal people themselves1. Further, the penalties imposed are too low and have failed to server their deterrent purpose when it comes to the conservation of heritage properties. Most important, some laws do not give the local people standing in determining the value and significance of these properties. The major shortcoming has been that the burden of proving the importance of the cultural object to the people.

Sign up to view the full document!

Thus, it’s critical that the regulations should be revised to put more emphasis on the importance of the object to the cultural heritage of the people. For instance, the NPW Act has been largely ineffective in protecting cultural heritage due to the burden of proving that an object has cultural importance on the indigenous people9. This can be demonstrated in the Chief Executive Office of Environment and Heritage v Ausgrid [2013] NSWLEC 5110 where it has largely been argued that the penalty imposed was too low and lacked any kind of substance. The findings of this case were that the less than appropriate penalty imposed on the accused was a result of the inability of the prosecution to prove the significance of the Aboriginal object to the people beyond any reasonable doubt.

Sign up to view the full document!

14 However, this imposes Western values in the conservation of heritage. In this case, a heritage object is more likely to be conserved if significant skills and resources have been put into it such as sophisticated rock engravings. But then most of the intangible relationships between the object and its cultural importance may be lost and may not clearly bring out how these objects relate to people in a more intangible way. Things such as the rarity may be given a significant attention by the Western notion of conservation but then may not necessarily be transferred to the community’s value systems and beliefs15. In addition, laws such as those presented in the Burra Charter may give a greater significance to certain aspects of objects over others16.

Sign up to view the full document!

However, the problem with this criteria is that for many of the existing heritage conservation laws the value placed on objects in many ways is not equal to the values placed on the objects by the aboriginal people themselves. All the significance tests applied fails to acknowledge the real significance placed on the place or object by the aboriginal people18. Thus the existing laws fail at incorporating the value system of the aboriginal people which results into the wrongful application of the significance tests on such objects. Another criticism on the enforcement of the current heritage conservation laws relates to the penalties imposed on offenders. The fines are relative too law compared to the offense committed. 21 Of course, some developers have decided to take this route.

Sign up to view the full document!

However, even with appropriate severe penalties, this will only be one part of heritage conservation. The legislation need to include self-determination aspect in the cultural heritage conservation laws. More recent legislation in states such as Victoria22 and Queensland23 have tried to recognise that the aboriginal people themselves are the most significant authority in heritage conservation. This will more likely solve the problem of significance determination because the people themselves understand the significance that a cultural object has to their value system. “Standing” refers to the procedures that are used in the determination of whether an individual or group can be recognized by the courts of law as a legitimate party to commence any legal proceedings. The reasoning behind the standing laws is to “to filter out those persons who have no interest whatsoever and are in truth no more than meddlesome busybodies”27 Note that it wasn’t until 1987, when the Australian court finally acknowledged that all environmentalists had a special interest in seeking access to the court of laws to represent entities such as endangered animals and forests.

Sign up to view the full document!

28 For instance, in relation to the conservation of protected areas, the EPBC Act contains several provisions for civil enforcement. Thus where an action is undertaken before meeting the required criteria or approval, then a civil penalty is imposed against the offenders. Thus, a considerable number of civil proceedings have been carried out against this Act. As already indicated, the application of the Western notion of value and significance also does little in identifying the significance of heritage property to the communities32. Additional measures should be directed towards meaningful conservation through adequate monitoring and promoting self-determination of value and significance and give more standing to the communities themselves to protect the heritage properties in courts through civil enforcement procedures. Criminal enforcement in heritage conservations has often shown to reflect the political culture which has shown to be historically pro-development biased.

Sign up to view the full document!

From $10 to earn access

Only on Studyloop

Original template

Downloadable