The adequacy of planning for heritage management can be assessed by considering the policies and plans in place that result in management actions to address major pressures and risks to heritage values. These plans and policies should also include allocation of roles and responsibilities for managing heritage issues.

Leadership

Australia lacks leadership in heritage management at a national level, partly through statutory limitations on the role of the Australian Heritage Council, and partly through diminution of resources and responsibilities and, in a conceptual sense, from the absence of a national heritage strategy. ^j,⁶⁸

This latter challenge may soon be addressed, as the portfolio budget statements for DSEWPaC for 2011–12⁶⁹ indicate that the department will 'develop an Australian Heritage Strategy, which provides national leadership in heritage management, conservation and celebration'. The related key performance indicators suggest that the proposed Australian Heritage Strategy will be launched by June 2012.

The current federal role, however, is very limited:

…it is doubtful that the Commonwealth is currently fulfilling its obligations under the COAG [Council of Australian Governments] agreement to protect the nationally significant places it has accepted onto the NHL [National Heritage List]. Australian Heritage Council,⁷⁹ p. 27

Council believes that to make the legislation effective the Commonwealth should lead and set standards in management and care of NHL places. Australian Heritage Council,⁷⁹ p. 28

There has been to date a significant gap between the obligations the Commonwealth Government takes on through listing and its capacity to fulfil those obligations. Australian Heritage Council,⁷⁹ p. 44

While these observations are particularly directed towards National Heritage List places, the Australian Government has a potentially instrumental role in setting standards and coordinating matters of common interest and practice, in line with the principles of the Council of Australian Governments. An extremely important issue will be the inclusion of heritage within our national narrative, whether by presentation and celebration, support for projects that have national relevance (such as heritage trades training) or encouragement of proactive strategic processes that lead to better integration of natural and cultural inheritance into future planning.

The 2009–10 annual report of the then Department of the Environment, Water, Heritage and the Arts suggests that, among other responsibilities, the department will:

…develop and implement the Government's policies, programs and legislation to identify, protect, conserve and celebrate natural, Indigenous and historic assets. Australian Government Department of the Environment, Water, Heritage and the Arts⁷⁰

Unfortunately, although there is recognition and support for such national leadership,^k there is a distinct absence of corresponding public sector resources. The limited resources available to the department and the limits on the statutory coverage provided by the EPBC Act mean that federal efforts focus on managing federal lands and agencies, places on the National Heritage List and Commonwealth Heritage List, associated processes for listing, and EPBC Act referrals and approvals. The department undertakes very few broader actions, especially in relation to local or state heritage, and some states have initiated their own heritage strategies (Box 9.18).

Even with respect to national heritage listing, action is curtailed by both resourcing and statutory processes. For example, amendments to the EPBC Act in 2007 provide that items are assessed for national listing only if they are placed on the Priority Assessment List after their initial nomination by the community or government. This amendment was considered necessary to cope with the volume of nominations received by the Australian Heritage Council. Nominations that are excluded from the Priority Assessment List do not proceed at all, which restricts the extent, coverage and effectiveness of the National Heritage List. From 1 January 2007 to 31 December 2010, only 23 places were added to the National Heritage List, 20 were under assessment, and 80 nominations had lapsed and were not being considered (DSEWPaC Heritage Division, pers. comm., July 2011).

The National Reserve System is an important program with an important aim, although there is debate about the size and selection of the target for a truly representative set of reserved lands. One of the major barriers to achieving the aim of the National Reserve System is the economic value of nonreserved lands that have potential high-yield uses such as extractive industry or development. This is partly due to deficiencies in accounting for the 'ecosystem service' value of reserved lands as the lungs of urban areas, major water catchments or recreational spaces, which provide both tourism income and contribute to the psychological health of communities (Box 9.19).

Jurisdictional arrangements

A broad range of Australian legislation includes provisions to list, protect and manage heritage places. However, our federal network of jurisdictional arrangements for heritage management creates overlap, inconsistencies and challenges for governments, public officials and owners. This report cannot offer a comprehensive analysis of the effectiveness of jurisdictional arrangements, but does provide observations about particular statutes and policies.

Coordinated programs at the national level include the Intergovernmental Agreement on the Environment (1992)⁷⁷ and a forthcoming Intergovernmental Agreement on World Heritage (which has been agreed but not yet ratified by all jurisdictions). Coordination also occurs through the Environment and Water Ministerial Council, and the Heritage Chairs and Officials of Australia and New Zealand (for historic places). There are no such national bodies for reserved lands and other forms of natural heritage that is not within a reserved park, nor for Indigenous heritage.

There are a range of important statutes, national policy documents and strategies that provide an excellent foundation for holistic heritage management. Australia's biodiversity conservation strategy 2010–2020, for example, indicates:

The important role of traditional Indigenous knowledge in contributing to the maintenance of Australia's biodiversity must be actively promoted to the whole Australian community. We also need to ensure that curricula at all levels in Australia promote an understanding of traditional Indigenous knowledge, how it has shaped Australia's environment, and the social and economic benefits of applying it in conjunction with modern management techniques. National Biodiversity Strategy Review Task Group,⁷⁸ p. 38

This national policy accords with Australia's ratification of the United Nations Convention on Biological Diversity (as adopted at the 1992 Rio Earth Summit), which among other requirements specifies:

Each Contracting Party shall, as far as possible and as appropriate: Article 8 (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices, Article 10 (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements;

The policy also accords in part with Australia's recent signing of the United Nations Declaration on the Rights of Indigenous Peoples (as adopted by United Nations General Assembly Resolution 61/295 on 13 September 2007),^m which specifies that:

Article 11 Indigenous peoples have the right to practise and revitalise their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historic sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

However, Australia has not yet ratified the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage.ⁿ

Substantial gaps remain in the legislative protective regime for Australian heritage. In particular, protection of natural and Indigenous places and values in a number of jurisdictions remains inadequate. Some jurisdictions offer little protection for natural places of significance outside the reserve system. Indigenous heritage protection continues to face significant issues relating to the recognition of 'traditional' as opposed to 'scientific' values. This situation arises from early Indigenous heritage legislation, which was designed to protect archaeological sites rather than wider Indigenous culture and therefore may not protect contemporary values held by the community, or sites where continuing tradition is expressed in intangible attributes rather than physical evidence.

This Act [National Parks and Wildlife Act 1974 (NSW)] protects Aboriginal objects as a class, but not places and landscapes of special significance to Aboriginal people unless they are specifically gazetted. A good aspect of this legislation is that it does require permits for the destruction of Aboriginal objects (which are mostly archaeological sites), but it is very hard to assess whether the intangible aspects of the significance of these places are taken into account as part of the decision making process. Prof Sharon Sullivan, AO, former Manager of Cultural Heritage for the New South Wales National Parks and Wildlife Service (and current member of the Australian Heritage Council), commenting on the National Parks and Wildlife Act 1974 (NSW), pers. comm., July 2011)

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) enables Aboriginal and Torres Strait Islander people to ask the Australian Government to protect areas and objects, including human remains, from injury or desecration. In response, the Australian Government can make declarations to protect areas and objects that are of particular significance in Indigenous tradition from threats of injury or desecration.

However, states and territories bear the primary responsibility for protecting traditionally significant areas and objects. The Australian Government cannot make a declaration if a state or territory law has, in effect, already protected the area or object from the threat. A declaration operates for a defined period and must be revoked if state or territory protection takes effect.

The ATSIHP Act has proven to be problematic:

The ATSIHP Act has not proven to be an effective means of protecting traditional areas and objects. Few declarations have been made: 93 per cent of approximately 320 valid applications received since the Act commenced in 1984 have not resulted in declarations. Also Federal Court decisions overturned two of the five long term declarations that have been made for areas. Australian Government Department of the Environment, Water, Heritage and the Arts,⁸⁰ p. 4

A comparison of the numbers of applications and ministerial declarations suggests that the ATSIHP Act is consuming public resources with little obvious benefit (Figure 9.15).

The ATSIHP Act was a temporary measure to encourage the states to protect sacred sites as part of a plan to introduce national land rights legislation. When the plan failed, the Act was made permanent, largely in its original form. It was not repealed or amended following the recognition of native title in Australian law.

In 2009, the Australian Government released a discussion paper on proposed reforms to the ATSIHP Act.⁸⁰ The reforms aim to improve the protection of the traditional heritage of Indigenous Australians in all jurisdictions through accreditation of state and territory laws that meet a set of rigorous standards. This would enable the Australian Government to take a more active and coordinated approach in the protection of sacred sites and objects. However, the delay in reforming the Act is prolonging uncertainty, especially for the states and territories, most of which are reviewing their Indigenous heritage legislation.

Other gaps and inconsistencies in statutory administrative and jurisdictional arrangements also threaten heritage. For example, the Australian Heritage Council periodic report 2007–10 notes that:

In the natural environment risks are posed by feral animals or ecosystems out of balance, the effects of climate change and urban incursion. Each of these is being addressed in various ways but it is difficult to see longer term improvements that will mitigate risks at the scale needed. The exclusion of natural heritage from regional forestry agreements is an ongoing concern. Australian Heritage Council,⁷⁹ p. 51

Even measuring federal achievements alone, the results are disappointing. For example, in 2009–10, DSEWPaC commented on only three management plans for places on the National Heritage List. Of the Australian Government agencies that are required to prepare written heritage strategies for managing places with listed or potential Commonwealth heritage values, less than half have done so.

Planning processes for heritage management would benefit from a more coordinated national approach that supports heritage conservation and management across all three levels of government. This need has been previously identified and well articulated. In 2007, a report to the Queensland Government on the lack of intergovernmental coordination and inadequate resources recommended a range of innovative incentives, including establishing a national heritage fund.⁵³ State coordination of heritage is improving (Box 9.20).

One significant initiative during this SoE reporting period was progress towards ratifying the UNESCO 2001 Convention for the Protection of the Underwater Cultural Heritage. A meeting of the former Environment Protection Heritage Council in November 2009 endorsed Australia pursuing ratification and the Australian Government is currently consulting with the states and territories. The convention aims to assist countries in managing and preserving their unique underwater cultural heritage. The convention came into force on 2 January 2009 following ratification by 20 member states, and requires all signatories to enact legislation that protects and manages underwater cultural heritage (Box 9.21).

4.2.3 Statutory protection

Heritage statutes and regulations are effectively planning controls with additional management provisions. Many heritage decisions are made in the context of applications for development consent. However, the planning system does not serve historic cultural heritage well in three areas, thereby increasing pressure on the resource:

• The notions of inheritance and public good could be better integrated within strategic planning frameworks and processes. Historic sites are typically managed as a constraint to be overcome, or a restriction on orderly land use, rather than as a community asset to be understood, cherished and celebrated.
• The planning systems in all jurisdictions are perceived as reactive and incorporating a principle that heritage can be negotiable or expendable if a sufficient case can be made.
• The systems do not offer adequate incentives to the thousands of private owners who are responsible for the care, control and conservation of the overwhelming majority of historic buildings in Australia. These owners deliver the public good but are expected to accept the implications (such as cost or restricted development opportunities).

Conflicts and poor heritage outcomes are often linked to misconceptions about the implications of heritage listing and lack of clear heritage policies and guidelines to assist owners, developers and decision-makers. When appropriate statutes, policies and guidelines are integrated with incentives and are well communicated, the system is far more robust (see Box 9.22).

The linear nature of our development assessment and consent processes places great reliance on existing reserved lands and statutory heritage lists. In Australia, the majority of cultural heritage places are only protected if they are formally identified and listed, whether at local, state or national level. (Exceptions include Aboriginal objects and rare and endangered species habitat in some jurisdictions.) However, many heritage lists have grown through inconsistent and sporadic processes, leading to significant gaps and implicit threats to unlisted places or unreserved significant lands. The National Reserve System contains significant gaps itself, but is also lacking in other important areas, such as landscape connectivity, adequacy of reserve sizes and configuration, the quality of reserved habitat and the complementarity of surrounding land uses.¹⁷

In its submission to the 2009 Hawke review of the EPBC Act, Australia ICOMOS identified the need for a strategic overview of heritage listing activity in Australia:

An expert review of all heritage registers in Australia should be undertaken, including the Register of the National Estate, with a view to developing a strategic view about the future of listing activities. The review should consider statutory and non-statutory lists. This review should be completed well before the statutory decline of the Register of the National Estate. Australia ICOMOS and Australian Council of National Trusts Workshop⁸¹

No such review has taken place, despite the pending demise of the Register of the National Estate.

More flexible approaches

A perverse pressure on historic heritage arises from the interest of many Australians in conserving these places. Although the overwhelming majority of listed historic heritage places are intact buildings that remain in use, there are also vacant buildings in remote areas, remnants of former mining and other defunct industrial activity scattered across the landscape and large industrial structures that are beyond practical physical conservation. However, there is a widely held perception that the only way to conserve historic heritage is to restore or reconstruct it to an intact state. This attitude militates against more innovative (and often more realistic) outcomes, such as allowing places to become ruins within the landscape, or recording them in archives before they are demolished.

The pressures of inflexible approaches are nowhere more evident than in the features of the Line of Lode mine at Broken Hill, where a century of mining provides an evocative reminder of our heritage, but which is largely beyond physical conservation.

This issue has been addressed for at least two Australian World Heritage areas. In Kakadu National Park:

The level of available resources and practicalities imposed by the location and condition of many historic sites means that all cannot be conserved and interpreted to a high standard; nor indeed is this necessarily desirable. However, it is considered essential that places relating to the major themes of the park are retained and managed so that they survive in a meaningful way in the long term and are accessible to and understood by visitors. Mackay,⁸²p. 32

The statutory management plan for Heard Island goes even further, providing an overt management policy where 'the reserve's cultural heritage is conserved through a process of managed decay'.⁸³ However, in both these cases, the specific heritage places proposed for management in this way are not part of the outstanding universal values that support the World Heritage listing.

Heritage as ruins is a topical and contested issue that Australian heritage managers are only now beginning to grapple with.^p The ruins approach is only one possible solution and needs to be considered carefully; there is a potential danger in creating the perception that it is desirable to allow places to become ruins. This approach may work where heritage places are redundant and in remote areas, or where they are ruinous already (Box 9.23). There is also an important difference between active management as a ruin (which might involve, for example, clearing of invasive vegetation) and complete abandonment. For some places, changed circumstances (such as a new owner) may lead to unforeseen conservation opportunities.

Similarly, understanding how modern needs and statutory guidelines can interact with heritage places can foster creative solutions to protect heritage values (Box 9.24).