The impact of the law on consultation practices and purpose: A case study of Aboriginal cultural heritage consultations in NSW

Consultation research to date has largely concentrated on how consultation practices generally serve only the purpose of procedural compliance. This article identifies and explores the gap in existing research on the impact of law on consultation practices and purposes. To explore current practices and the potential contribution of law to the nature of consultation practices, the article focuses on the NSW duty to consult Aboriginal people before permitting harm to Aboriginal cultural heritage. Conventional regulatory approaches to consultation assume that Aboriginal interests are accommodated by the same consultation strategies applied to other stakeholders in rural law and policy. This article uses an administrative law doctrinal research approach to identify the specific issues and requirements for Aboriginal consultation relating to cultural heritage. Consideration is given to the effectiveness of the case study consultation requirements, the duty design, and the recent Land and Environment Court judgment of Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water. The article argues that statutory consultation requirements and purposes can, and should, be taken more seriously. The law reform discussion highlighted in the paper considers how identified consultation requirements can be incorporated into Australian Cultural Heritage legislation, and the possible impact of such incorporation on the purpose of the consultation. More broadly, the law reform discussion indicates that when consultation requirements are tailored to suit the purpose of the consultation and the consultation parties, the law can play a positive role in consultation, engagement and capacity building.


Introduction
Consultation is the seeking of information or advice from others. 2 It often precedes government decision-making, either as an exercise of discretion or because of a legal requirement to consult.This article considers the duty to consult that arises when a law requires consultation before the making of a government decision.

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Occassional Paper Series 2012 requirements enable practices that fulfil the purpose of those requirements; and an evaluation of the extent to which the duty to consult fulfils its intended purpose.
In light of the above discussion, this article considers the following arguments: 1.That statutory consultation requirements lack the standards and specifications necessary to ensure the implementation of effective practices 2. That statutory duties to consult are ill-designed to fulfil the purpose of the consultation 3.That specific law reform measures may improve the problems of ineffective practices and unfulfilled purposes The article is not a critique of Aboriginal rights or Aboriginal cultural heritage management.It aims is to ignite discussion on the impact of the law on consultation practices and purposes by testing the arguments against the NSW National Parks and Wildlife Act ('NPWA') duty to consult Aboriginal people before permitting harm to Aboriginal cultural heritage. 19aluation of this duty is appropriate because it is the most recent example of a statutory duty to consult.It is also timely because there are no academic evaluations to inform the impending reform of Aboriginal cultural heritage legislation in NSW. 20

Contribution to international rural law and policy
Aboriginal cultural heritage (ACH) protection and management is central to the international goals of Aboriginal rights recognition, sustainable development and Natural Resource Management (NRM).Aboriginal people are increasingly engaged in ACH protection and management through consultation.This article offers a unique approach to investigating the role of law in consultation, engagement and capacity building in NRM.It interrogates the assumption that key issues relate to good or bad procedures and practices and argues that statutory consultation requirements and purposes can, and should, be taken more seriously and implemented with greater rigour, fairness and due process.The conventional planning and regulatory approach to consultation assumes that Aboriginal interests are accommodated by the same consultation processes that are applied to other stakeholders in rural law and policy.This article identifies very specific issues and requirements for Aboriginal consultation relating to cultural heritage.The research also contributes to the jurisprudence and interdisciplinary approaches for Next Generation NRM Governance being developed by the Australian Centre for Agriculture and Law at the University of New England.

Methodology
This article applies an administrative law doctrinal research approach to explore the relationship between statutory consultation requirements and consultation practices and purposes.The methodology uses a case study to test arguments related to the practices and purposes of the duty to consult.The arguments and best practice principals are derived from the board spectrum of views, perceptions and experiences found in academic theory, case studies, government reports, ACH law reform documents and submissions, media articles, and Parliamentary debates.
Issues with the current regime and key requirements for effective consultation were drawn from the views of Aboriginal people and other key stakeholders expressed in stakeholder interviews, submissions to past and current ACH law reform discussions and government policy documents.
The comparative study of ACH legislation in other jurisdictions was assisted by reports and discussion papers published by the relevant government.The law reform discussion was particularly informed by past and current law reform papers from across Australia, submissions made to recent law reform inquiries, and stakeholder interviews.

Interview participants
To obtain a balanced view of current consultations, it was appropriate to interview an equal number of representatives from each stakeholder group.Formal interviews were conducted with two Aboriginal stakeholders, two Office of Environment and Heritage employees, and two developer stakeholders.These interviews were conducted in person, or through a questionnaire.Concerns about confidentiality led a further three respondents to request informal participation.These interviews were conducted by telephone.Due to contention surrounding the case study consultations, all nine interview participants requested confidentiality.As such, participants are referenced throughout this article as follows: • Registered Aboriginal native title claimant representative AP1 Case study legal framework ACH includes objects, places and features of significance to Aboriginal people. 21ACH management is a state responsibility. 22In NSW, ACH management falls under the National Parks NPWA. 23The Office of Environment and Heritage ('OEH') administer the NPWA, and the associated NPWR. 24 objective of the NPWA is the conservation of 'places, objects and features of significance to Aboriginal people'. 25This object is given partial effect through the strict liability offence of causing harm to an Aboriginal object, or Aboriginal place declared to be of special significance to Aboriginal people. 26A defence to this offence is that the harm was authorised by an Aboriginal Heritage Impact Permit issued by the Chief Executive of the OEH, or delegate thereof. 27nsultation with Aboriginal people before issuing an Aboriginal Heritage Impact Permit used to be just a matter of policy. 28In October 2010, consultation became a matter of law when the NSW Government amended the NPWR to include the following requirements:

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The duty to consult is based on recognition of Aboriginal responsibilities to ACH, 31 and recognition of Aboriginal people as experts on ACH. 32OEH guidelines state that the purpose of the duty is to ensure Aboriginal information informs Aboriginal Heritage Impact Permit decisionmaking. 33OEH guidelines suggest that the purpose of the consultation requirements is to ensure that authoritative and relevant Aboriginal information informs the Cultural Heritage Assessment Report. 34

Consultation requirements and issues
The following discussion considers the first argument: that statutory consultation requirements lack the standards and specifications necessary to ensure the implementation of effective practices.Consultation requirements determine the consultation practices that the consulter must implement.Effective practices are those that fulfil an intended purpose. 35OEH guidelines suggest the purpose of the NPWR consultation requirements is to ensure that authoritative and relevant Aboriginal information informs the Cultural Heritage Assessment Report. 36Therefore, there will be support for the first argument if the consultation requirements lack the standards and specifications necessary for authoritative and relevant Aboriginal information to inform the Cultural Heritage Assessment Report.

Notification and registration
Before applying for an Aboriginal Heritage Impact Permit ('AHIP'), the developer must consult with Aboriginal people in accordance with the NPWR consultation requirements. 37The developer must invite any registered native titleholder for the plan area to participate in consultation. 38If there is no native titleholder, the developer must invite any Aboriginal person who may hold cultural knowledge about Aboriginal objects or declared Aboriginal places in the area. 39The developer must obtain these names from organisations such as the Local Aboriginal Land Council, 40 and from people self-nominating in response to a notice in the local newspaper. 41e invitation must state that the purpose of the consultation is to assist the developer in preparing an AHIP application, and to assist the OEH in considering the application. 42Any person claiming to have cultural knowledge of the area has 14 days to register to participate in the consultation. 43Once registered, the developer must consult with each registered Aboriginal party ('RAP'). 44terviews with stakeholders and submissions to NSW ACH law reform inquiries identified three major issues with the current notification and registration requirements: failure to require a clear statement of purpose; failure to require only authoritative information; and failure to provide for conflicts of information.

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It is well accepted that people share information in accordance with what they understand the purpose of the consultation to be. 45If people have different understandings of the purpose, the intended purpose is difficult to achieve. 46To ensure achievement of the intended purpose, all parties must be clear on the intended purpose at the outset. 47vernments across Australia publicly recognise Aboriginal people as the primary source of information on 'the value of their heritage and how this is best protected and conserved'. 48This view is reflected in OEH guidelines that state that the purpose of the NPWR duty to consult is for Aboriginal information to inform AHIP decision-making. 49The NPWR notification requirements, however, require the developer to state that the purpose of the consultation is to assist the developer in preparing an AHIP application, and to assist the OEH in considering that application. 50While the difference in wording may appear trivial, the consequences of the difference suggest otherwise.It is not a stretch to argue that information exchanged with 'assistants' is different to that exchanged with 'experts'.It is also not a stretch to argue that the subordination of 'experts' in ACH protection to 'assistants' in applications to harm may generate feelings of resentment and mistrust. 51As a result, the purpose as stated in the notification requirements may have a negative effect on the information parties share, and the information used to inform the Cultural Heritage Assessment Report.
In regard to the failure to require authoritative information, several issues arise.The first of these goes to representation.Australian governments accept that 'Aboriginal people with traditional responsibilities for heritage are best placed to advise on the manner of protecting their traditional areas and objects'. 52It is sometimes difficult to identify who holds primary traditional responsibilities over an area. 53What is clear is that native titleholders and registered native title claimants have both proved, to varying degrees, traditional responsibilities over an area. 54This supports a claim that native titleholders and registered claimants are 'best placed to advise' on ACH protection.
The NPWR registration requirements do prioritise information from native titleholders. 55owever, the requirements fail to prioritise registered native title claimants. 56Instead, when there is no native titleholder, the requirements allow any person claiming to have cultural

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Occassional Paper Series 2012 knowledge of the area to register and provide information on ACH. 57This ensures that information provided by Aboriginal people with proven traditional responsibilities over the area is equal to that provided by any other. 58This leads developers and Aboriginal people to agree: [The NPWR registration requirements] result in 'out of country' Aboriginal involvement in the consultation process.This in turn marginalises and compromises the contribution of 'in country' stakeholders and can even result in non-Aboriginal involvement in the consultation process. 59other potential impediment to the collection of authoritative information is the regulatory failure to end the pre-2010 connection between consultation and employment.The registration requirements allow people to register for consultation as a way of getting site work at up to $500.00 per day. 60Several interview participants considered that information provided by an RAP hoping for employment may be dictated by what is most likely to secure that employment. 61This may result in unauthoritative Aboriginal information informing the Cultural Heritage Assessment Report.
The NSW Aboriginal Land Council notes that the open registration requirements may result in 'a large number of groups registering for one project, making it impossible to find a clear consensus on the significance of an object or place'. 62This is particularly concerning in light of the fact that that the NPWR offers no guidance on how to resolve conflicts of information. 63Although OEH guidelines task Aboriginal people with resolving disputes over who speaks for country, 64 this role may be difficult to fulfil in the face of regulations that require the developer to register every party claiming to have cultural knowledge. 65The above issues suggest that the NPWR notification and registration requirements lack the standards and specifications necessary to ensure that authoritative Aboriginal information informs the Cultural Heritage Assessment Report. 66

Information exchange
The NPWR provides for two information exchanges. 67In the first, the developer must give each RAP detailed information about the proposal and a copy of the proposed methodology for the Cultural Heritage Assessment Report, commonly called the 'CHAR'. 68RAPs have 28 days to make written or oral submissions on the proposed methodology. 69During this time, the developer must seek information from RAPs on whether there are any objects or places of cultural value to Aboriginal people in the area. 70 5)-( 6), (8). 68Ibid regs 80C(5)(c), (6)(a). 69Ibid reg 80C(6)(b). 70Ibid reg 80C (7).The second information exchange requires the developer to give a copy of the draft CHAR to each RAP. 71RAPs have 28 days to make written or oral submissions. 72The CHAR must include: • an assessment of the significance of objects or declared places in the plan area • a description of actual or likely harm to those objects or places • practical measures to protect and conserve those objects or places • practical measures to avoid or mitigate harm to those objects or places • copies of consultation submissions 73 Interviews with stakeholders and submissions to NSW ACH law reform inquiries identified four major issues with the current information exchange requirements: failure to require appropriate mode; failure to require early engagement; failure to obtain Aboriginal information on the CHAR elements; and failure to require a developer to take consultation submissions into account.
The purpose of the consultation requirements is to ensure that authoritative and relevant Aboriginal information informs the CHAR. 74For relevant information to inform the CHAR, the consultation mode must be appropriate and adapted to the consultation parties. 75Despite recognition that the written notice and submission mode of consultation may exclude information from Aboriginal people, 76 the NPWR merely requires developers to provide certain information.This allows developers to send RAPs complex written documents with no explanation or interpretation. 77This may affect the capacity of a RAP to give 'a proper expression of opinion or advice'. 78Furthermore, despite recognition that oral submissions are an important source of ACH information, 79 and despite the NPWR allowing a RAP to make an oral submission, 80 there is no requirement that the developer record, verify or consider information contained in oral submissions.The developer is only required to include copies of consultation submissions in the CHAR. 81Interview participants suggest that these submissions are either written by the developer, 82 or contain a general statement that everything is significant. 83These issues suggest that the NPWR mode of consultation may prevent relevant information from informing the CHAR.
Academics and the OEH agree that consultation advice is most likely to be taken into account if consultation occurs early in the development planning process. 84Although the NSW government considers that the consultation requirements ensure 'Aboriginal submissions ... are taken into account', 85 the consultation requirements make no provision for early engagement.This absence allows OEH internal decision-making guidelines to state that a decision-maker must have proof of 71 Ibid reg 80C(8)(a). 72Ibid reg 80C(8)(b). 73Ibid regs 80D(2)-(3)(a). 74

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Occassional Paper Series 2012 development consent before a issuing an AHIP. 86A developer obtains development consent after assessing practical measures to protect and conserve Aboriginal objects or declared places, and practical measures to avoid or minimise harm to those objects or places. 87An AHIP application is only made if a developer determines harm to an object or declared place is unavoidable. 88onsequently, most of the CHAR information is determined before NPWR consultation, usually through consultation conducted as part of the planning process. 89f further concern is that despite recognition of Aboriginal people as experts in ACH protection and conservation, 90 the NPWR only requires the developer to seek Aboriginal information on whether there are any objects or places of cultural value to Aboriginal people in the plan area. 91here is no requirement to seek Aboriginal information on: • the significance of Aboriginal objects or declared places • the actual or likely harm to those objects or places • practical measures to protect and conserve those objects or places • practical measures to avoid or mitigate harm to those objects or places Of most concern is that the requirements make no provision for Aboriginal information on, or assessment of, significance.This is despite widespread recognition that Aboriginal people should determine the significance of ACH. 92A significance assessment requires equal consideration of the 'social/cultural, historic, aesthetic and scientific (archaeological) significance' of Aboriginal objects and declared places. 93The NPWR only requires the developer to seek information on whether there are Aboriginal objects or places of cultural value in the plan area. 94The failure to link Aboriginal people and information to the significance assessment allows OEH guidelines to task the developer with assessing the significance of Aboriginal objects and declared places. 95In reality, developers hire archaeologists to prepare the CHAR. 96This raises the concern, repeatedly expressed in judicial dicta and academic literature, that archaeological values will dominate Aboriginal values in the significance assessment of objects and declared places. 97he requirements also fail to maintain the connection between objects, places and landscape features.An assessment of objects is inseparable from an assessment of places and landscape features. 98Further, information on places and features may clarify the value of Aboriginal objects. 99While the NPWR requires the developer to seek information on whether there are any objects or places in the plan area, 100 there is no requirement to seek information on whether there are any landscape features in the plan area.The failure to maintain the connection between objects, places and features may prevent relevant Aboriginal information from informing the cultural heritage assessment of objects and declared places.
Another impediment to authoritative and relevant information is the failure to provide for culturally sensitive information.Culturally sensitive information is often directly relevant to the cultural heritage assessment of objects and declared places. 101Traditional lore and custom may require that information on objects or places remains secret or confidential. 102This is why OEH guidelines encourage the developer and RAP to agree on protocols for dealing with sensitive or confidential information. 103However, the consultation requirements fail to require parties to develop protocols and fail to accommodate secret or confidential information.These regulatory failures may prevent a RAP from sharing relevant information with the developer. 104stly, if the consultation is to inform decision-making, decision-makers must be 'genuinely prepared to take on board objections and conflicting claims'. 105To avoid relying on human sincerity, legislation typically requires the decision-maker to consider consultation information. 106The NPWR consultation requirements, however, contain no requirement for the developer to consider consultation information when preparing the CHAR.Further, there is no consultation on the final methodology, or the final CHAR.This means there is no way a RAP can verify that consultation information has been fairly used or used at all.

Preliminary conclusions on consultation requirements
The purpose of the NPWR consultation requirements is to ensure authoritative and relevant Aboriginal information informs the CHAR.The above evaluation, however, suggests that the consultation requirements lack the standards and specifications necessary for authoritative and relevant Aboriginal information to inform the CHAR.The notification and registration requirements allow for the registration of parties that may not hold authoritative information.The information exchange requirements fail to ensure that relevant Aboriginal information informs the significance assessment, or the assessment of practical alternatives to destruction.As a result, the above evaluation provides support for the argument that statutory consultation requirements lack the standards and specifications necessary to ensure the implementation of effective practices.

The duty to consult
This section considers the second argument: that statutory duties to consult are ill-designed to fulfil the purpose of the consultation.The purpose of the NPWR duty to consult is to ensure that Aboriginal information informs AHIP decision-making. 107The duty aims to inform AHIP decisionmaking through the CHAR. 108The preceding evaluation revealed that the consultation requirements lack the prerequisites for authoritative and relevant Aboriginal information to inform the CHAR.Evaluation of the NPWR duty to consult requires evaluating whether compliance with the consultation requirements satisfies the prerequisites for informed decisionmaking. 99Ibid; see also Ashton [2011]

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Occassional Paper Series 2012 The prerequisites for informed decision-making in this case study are found in the NPWA s 90K( 1).An AHIP decision-maker must consider the following matters only: • significance of objects or declared places in the plan area • actual or likely harm to those objects or places • practical measures to protect and conserve those objects or places • practical measures to avoid or mitigate harm to those objects or places • documents accompanying the application • NPWA objectives • social and economic consequences of the decision • consultation results, including copies of consultation submissions • whether the developer substantially complied with the consultation requirements 109 The NPWR duty to consult includes a stipulation that an AHIP application 'is not invalid merely because the applicant … failed to comply with any one or more of the requirements'. 110In light of this, the Land and Environment Court recently stated in Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water: In our view ... a finding that there has not been substantial compliance with those requirements would not of itself warrant refusal of an application, but would be a matter to be weighed against the other considerations in s 90K (1).The significance of such a finding would go to whether the decision-maker had available sufficient material to consider properly each of the other matters specified in s 90K(1), in particular those matters going to the significance of the Aboriginal objects and the actual or likely harm to those objects. 111is statement suggests three things: 1.That informed decision-making requires sufficient material on each decision-making criterion 2. That substantial compliance with the NPWR consultation requirements provides the decisionmaker with sufficient material to properly consider each decision-making criterion 3.That the duty to consult is adequately designed to inform AHIP decision-making The Court suggested that the NPWR duty to consult is sufficiently designed to inform decisionmaking because the decision-making criterion focuses on objects. 112As such, archaeological information on objects is sufficient to inform decision-making. 113The following evaluation tests this view by considering: 1.The reasoning in Ashton 2. Whether compliance with the requirements provides sufficient information to properly consider each decision-making criterion 3. Whether substantial compliance with the requirements is sufficient to inform decisionmaking

The reasoning in Ashton
The OEH refused to grant Ashton Coal an AHIP because Ashton failed to substantially comply with the consultation requirements.As such, the decision-maker had insufficient information to properly consider each decision-making criterion. 114Ashton invoked its statutory right to a merits review of the refusal in the Land and Environment Court. 115The challenge became a request for consent orders when Ashton and the OEH agreed on AHIP terms and conditions during the merit hearing. 116 lawful and appropriate to make the consent orders'. 117The Court consented to the AHIP pending a minor amendment. 118e Court found Ashton had not complied with the notification and registration requirements, or the requirement to consult on the proposed methodology and draft CHAR. 119The Court noted the dominance of archaeological information on objects in Ashton's CHAR. 120The Court considered such a CHAR an 'unbalanced cultural assessment' that failed to meet 'good practice'. 121Nevertheless, the Court found that the decision-making criterion focuses on objects. 122This led the Court to conclude: While there were respects in which the consultation process engaged in by Ashton did not comply with the requirements of the legislation, we are satisfied that the results of the consultation, including the submissions made by Aboriginal stakeholders as part of the process relied upon by Ashton in the AHIP application and during the course of these proceedings, have provided sufficient evidence to enable proper consideration of the matters specified in s 90K(1).While we have expressed concerns as to whether all aspects of the cultural significance of the Aboriginal objects the subject of the AHIP have been considered, we are satisfied that the archaeological evidence provided … has been thorough. 123e Court only had sufficient information to consider each decision-making criterion after supplementing Aboriginal submissions made during consultation with oral submissions made during the hearing. 124This highlights the need for consultation requirements to provide adequately for oral submissions.The implication most relevant to evaluation of the duty to consult is that archaeological information on objects is sufficient to inform AHIP decisionmaking.Further support for this implication is found in the Court's constant reference to archaeologists as expert witnesses, 125 and the making of consent orders despite insufficient information on 'all aspects of cultural significance'. 126The following discussion tests the truth of this implication by exploring the information necessary to consider properly each decisionmaking criterion and whether substantial compliance with the consultation requirements provides the decision-maker with that information.

Does compliance provide sufficient information to properly consider each decision-making criterion?
Proper consideration of actual or likely harm to Aboriginal objects requires Aboriginal identification of those objects. 127Proper consideration of the significance of objects or declared places requires Aboriginal information on the social, cultural, historical and aesthetic value of those objects and places. 128Proper consideration of protection, conservation, avoidance and mitigation measures requires Aboriginal information on how the object or place may be 'best protected and conserved'. 129anted, the requirement to seek information on whether there are objects or places of cultural value in the plan area provides for RAP identification of objects and places. 130It does not provide

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Occassional Paper Series 2012 for the seeking of Aboriginal information on the values that comprise significance, or on how objects or declared places may be best protected and conserved.Furthermore, compliance with the open registration requirements may cause the decision-maker to rely on non-authoritative information.It is therefore unlikely that compliance with the consultation requirements will provide the decision-maker with sufficient Aboriginal information to consider properly the first four decision-making criteria. 131oper consideration of the NPWA objectives requires sufficient Aboriginal information on objects, places and landscape features of significance to Aboriginal people, and places of social value to Aboriginal people. 132Compliance with the requirements only provides for RAP identification of objects and places in the plan area.There is no requirement to seek RAP information on: • landscape features • the significance of objects, places and features • the social value of places Furthermore, a compliant developer is under no obligation to consider consultation information when preparing the CHAR.Therefore, compliance with the requirements does not ensure the decision-maker has sufficient information to consider properly the NPWA objectives. 133e requirement to consider the NPWA objectives imports a requirement to consider the principles of ecologically sustainable development ('ESD'), as defined by the Protection of the Environment Administration Act 1991 (NSW). 134Proper consideration of ESD so defined requires the decision-maker to balance economic and protection interests. 135The NPWR vests control of the consultation and the CHAR in the developer.This control no doubt ensures the decisionmaker has sufficient information to consider economic interests.In light of the fact there is no requirement for the developer to collect Aboriginal information on how ACH may be best protected and conserved, 136 compliance is unlikely to provide the decision-maker with sufficient information to balance economic and protection interests.
Proper consideration of ESD so defined also requires enough information for the decision-maker to consider the cumulative impacts to regional cultural values. 137The developer must only seek information on whether there are objects or places of cultural value in the area.The developer is not required to seek information on the actual cultural values of those objects or places.
Compliance with the requirements therefore does not ensure the decision-maker has sufficient information to consider properly the cumulative impacts to regional cultural values. 138oper consideration of economic and social consequences of the decision requires sufficient information of socio-economic consequences such as job loss, 139 and socio-cultural consequences such of destruction of 'places of social value to the people of New South Wales'. 140The decision-maker must notify the developer of any intent to refuse an AHIP, and consider any submission made by the developer in response. 141This ensures the decision-maker has sufficient information to consider the economic consequences of making the decision.However, as there is no requirement to collect Aboriginal information on social values, compliance with the duty does not ensure the decision-maker has sufficient information to consider properly the social consequences of the decision.
Proper consideration of consultation results requires sufficient information on consultation undertaken and consultation submissions received. 142Developers and Aboriginal interview participants suggest that it is easy to provide information on how many letters were sent, how many phone calls were made, and how many responses were received. 143In regard to consultation submissions, the developer must include copies of submissions in the CHAR. 144As there is no requirement to record, verify or consider oral submissions, compliance does not ensure the decision-maker is privy to oral submissions.Interview participants suggest that written submissions typically contain a general statement that everything is significant. 145owever, written submissions may also reveal 'a divergence of views within the Aboriginal community as to the … presence of significant objects and sites in the AHIP area'. 146The requirements contain no guidance on how to resolve these conflicts of information.Instead, compliance with the registration requirements may exacerbate conflicts of information.In this case, compliance may make proper consideration of consultation results difficult.

Is substantial compliance sufficient to inform decision-making?
The above evaluation casts doubt on the implication that archaeological information on objects is sufficient to inform decision-making.Proper consideration of the significance of Aboriginal objects and declared places, the NPWA objectives, the principles of ESD and the social consequences of the decision requires Aboriginal information on the social, cultural, aesthetic and historic value of objects, places and landscape features.Proper consideration of protection, conservation, avoidance and mitigation measures requires authoritative Aboriginal information on how an object or declared place may be best protected or conserved.The requirement to seek information on whether there are any places of cultural value in the plan area further suggests that archaeological information on objects is insufficient to inform consideration of each decision-making criterion. 147In light of this evaluation, the implication that archaeological information on objects is sufficient to inform decision-making appears outdated. 148r the duty to consult to be adequately designed to fulfil its purpose, substantial compliance with the consultation requirements must provide the decision-maker with sufficient material to consider properly each decision-making criterion.The above evaluation indicates that substantial compliance with the consultation requirements fails to provide the decision-maker with sufficient Aboriginal information to consider properly each decision-making criterion.This suggests the NPWR duty to consult is ill-designed to inform decision-making.

Judicial review and consultation
Statutory provisions surrounding the NPWR duty to consult ensure that defects in duty design are an insufficient basis for impugning an AHIP approval in proceedings for judicial review. 149Judicial review concerns the legality of the decision. 150This means the Land and Environment Court may only invalidate an AHIP approval if the decision-maker: • failed to afford procedural fairness • failed to follow correct procedure • acted outside decision-making power, in that the decision-maker failed to consider a relevant consideration, acted for an improper purpose, or made a decision that was

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Occassional Paper Series 2012 manifestly unreasonable 151 Prior to October 2010, Aboriginal parties had to establish a right to be consulted based on a special interest in the subject matter. 152Even if the Aboriginal party established the right, the Court considered that procedural fairness required nothing more than notice of a proposed decision, and the right to make a submission. 153As the decision-maker could approve an AHIP on any terms and conditions the decision-maker thought fit, 154 challenges based on incorrect procedures, or acting outside power, rarely succeeded. 155In the one case, the Court found a decision invalid, 156 the same decision was simply remade using correct procedure. 157anted, the post-2010 duty to consult establishes a right to be consulted. 158However, statutory provisions surrounding the NPWR duty to consult are likely to protect decisions based on insufficient information from attack.Substantiating an OEH breach of procedural fairness is unlikely because fairness is now a matter of statutory construction, 159 and the NPWR makes it clear an AHIP application is valid notwithstanding a failure to comply with the consultation requirements. 160In any event, the OEH is unlikely to grant an AHIP if the developer fails to give Aboriginal people notice and the opportunity to make a submission at some stage in the development planning process. 161Substantiating an argument that the decision-maker followed incorrect procedures is unlikely because all a decision-maker has to do to follow correct procedures is consider consultation results, and consider whether the developer substantially complied with the consultation requirements.A RAP may argue that the consultation was so inadequate it forced the decision-maker to act outside decision-making powers.However, as Dr Chris McGrath observes: Judicial review is typically of little use for environmental litigation where it is the poor nature of an administrative decision that needs to be redressed.If the Minister or their delegate has 'ticked all the right boxes' and been careful in writing their reasons for a decision ... then what is essentially a very poor decision allowing highly damaging development may not be challenged. 162

Preliminary conclusions on duty design
The purpose of the NPWR duty to consult is for Aboriginal information to inform OEH decisionmaking.Fulfilment of this purpose requires the decision-maker to have sufficient Aboriginal information to consider properly each decision-making criterion.The design of the NPWR duty to consult ensures the decision-maker has sufficient information on the archaeological value of objects, and the economic interests at stake.However, even perfect compliance with the consultation requirements fails to provide the decision-maker with sufficient Aboriginal information on each decision-making criterion.This provides support for the argument that statutory duties to consult are ill-designed to fulfil the purpose of the consultation.

Law reform
This section considers the third argument: that specific law reform measures may improve the problems of ineffective practices and unfulfilled purposes.The preceding evaluations indicate that the law may have a negative impact on consultation practices and purposes.If the law can have a negative impact on consultation practices and purposes, law reform may have a positive impact on the problems of ineffective practices and unfulfilled purposes.
NSW and the ACT are the only Australian jurisdictions without independent ACH legislation. 163he NSW Government is currently investigating independent ACH legislation with the aim of drafting ACH legislation by 2012. 164For the purpose of developing recommendations to form the basis of a submission to the NSW law reform, this section considers how ACH legislation in other Australian jurisdictions can inform NSW law reform; and what law reform measures may facilitate improvements to the problems currently facing consultation practices and purposes.

ACH legislation in other Australian jurisdictions
Although ACH management is a state responsibility, 165 the federal government is responsible for issuing permits to harm ACH of national or world significance, 166 and for making declarations to protect imminently threatened ACH. 167However, the federal structure offers little to inform the NSW reform.There is no requirement that the Minister for Sustainability, Environment, Water, Population and Communities consult with Aboriginal people before permitting harm to ACH of national or world significance, 168 or before making a declaration to protect imminently threatened ACH. 169Consultation is either discretionary, 170 or part of general public consultation. 171Federal legislation has been further criticised for its failure to support Aboriginal determinations of significance, oral submissions and confidential information. 172e Tasmanian structure offers little to inform the NSW reform.Although statute allows the Relics Advisory Council to advise the Minister for Heritage on permits to harm ACH, 173 the Council has not operated since the 1980s. 174The learned consequence of no duty to consult is that consultation becomes a matter of institutional discretion. 175ere is no legislative provision for consultation with Aboriginal people before permitting harm to ACH in Western Australia. 176Instead, the Minister for Aboriginal Affairs must consult with the Aboriginal Cultural Materials Committee. 177There is no requirement that the Minister appoint an Aboriginal member to the Committee. 178A 1995 review of the Western Australian legislation concluded the consultation structure fails to provide 'the [Minister] with sufficient material to … make a fair and informed decision'. 179Such a structure is unlikely to inform the NSW reform.

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Occassional Paper Series 2012 As part of an integrated approach to development approvals and heritage protection, the ACT Planning Authority must send certain development proposals to the Heritage Council. 180The Council may advise the Authority of ways the developer may conserve heritage significance. 181here is no requirement to consult Aboriginal people before giving this advice, but one member of the Council must be Aboriginal. 182The Council must advise the Authority of any requirements under heritage guidelines. 183The Council may make heritage guidelines after giving a relevant Representative Aboriginal Organisation notice of the draft guidelines, and considering any comments. 184As previously mentioned, the notice and submission mode of consultation is inappropriate for Aboriginal people.Further, there are no statutory criteria guiding the Ministerial registration of an Aboriginal organisation. 185Interestingly, however, the legislation contains a list of 'heritage significance criteria'. 186This may assist an ACH significance assessment.
Before issuing a permit to harm ACH, the Minister for Aboriginal Affairs and Reconciliation must take 'reasonable steps' to consult with the Aboriginal Heritage Committee, native title bodies, traditional owners, and any other Aboriginal party the Minister considers relevant. 187While Aboriginal information on significance is determinative, 188 the Minister is under no obligation to consider consultation information in decision-making.Further, a failure to define 'reasonable steps' means what is reasonable is determined on a case-by-case basis. 189Widespread dissatisfaction with how Aboriginal information informs permit decisions partially explains the pending reform of ACH legislation in South Australia. 190The South Australian law reform discussion may help inform NSW law reform.
In 2003, Queensland replaced the permit to harm with the Cultural Heritage Management Plan ('CHMP'). 191If another development approval is required, a developer must prepare a CHMP. 192he developer must issue a notice of intent to prepare a CHMP according to the statutory consultation hierarchy. 193At the top of the hierarchy is the Aboriginal Cultural Heritage Body ('ACHB') for the area. 194The function of the ACHB is to identify the Aboriginal Party for the area. 195The legislation identifies an Aboriginal Party as the native titleholder, registered native title claimant, or someone who holds traditional or familial cultural authority. 196If there is no ACHB, the developer must give notice of intent to prepare a CHMP to the Native Title Party for the area. 197The legislation identifies a Native Title Party as a native title holder, registered native title claimant, or failed native title claimant. 198 37 ACHBs. 201Issues may arise, however, when there is no ACHB.In that case, the Native Title Party notice generally only extends to the individual named on the native title application, not to the claimant group, 202 and 'a failed claimant has prime consultation rights if no one else lodges a subsequent claim'. 203When there is no Native Title Party, the requirement to consult with anyone claiming to be an Aboriginal Party may raise similar issues to those raised by the NPWR open registration requirements.
In Queensland, the CHMP process occurs over a period of four months. 204Each party must consult and negotiate with each other for the purpose of reaching agreement on protection, conservation, avoidance and mitigation measures. 205If all parties agree, the Chief Executive of the Department of Environment and Resource Management must approve the CHMP. 206If an Aboriginal body refuses to approve the CHMP, the developer may seek mediation through the Land Court, 207 or a recommendation from the Land Court that the Chief Executive approve the CHMP. 208e CHMP concept merits further research.It is possible that the Queensland CHMP model contains several concepts that may improve consultation practices and purposes.The legislation suggests information parties may wish to discuss in consultation, such as reasonable employment requirements, 209 and suggests methods of communication, such as face-to-face meetings. 210hese suggestions may help authoritative and relevant Aboriginal information inform the cultural assessment and decision-making.The legislation provides for the registration of cultural heritage studies prior to development issues arising. 211This allows for the early receipt of Aboriginal information, and may trigger the requirement to consult at the desktop planning stage. 212n Victoria, the Secretary of the Department of Community and Planning must refuse to grant a permit to harm ACH if a Registered Aboriginal Party ('RAP') objects to the issuing of the permit. 213This thesis does not investigate the merits of sharing executive decision-making power.As such, the effectiveness of the Victorian permit system is the domain of another paper.In any case, the Aboriginal Heritage Act 2006 (Vic) largely replaced the permit with the CHMP. 214f a development requires an approval under another law, the developer must have an approved CMHP before seeking development consent. 215Developers must give a relevant RAP notice of intent to prepare a CHMP. 216An RAP may respond with a notice of intent to evaluate the CHMP. 217If so, parties must then make 'reasonable efforts' to consult with each other, 218 and to agree on harm avoidance and mitigation measures, ACH management issue, and dispute resolution mechanisms. 219An RAP may only refuse to approve a CHMP if the CHMP does not adequately address these matters. 220If a RAP refuses to give approval, the developer may seek a merits review in the state administrative tribunal. 221If there is no RAP for the area, the Secretary may approve the CHMP after consulting any Aboriginal person the Secretary considers relevant. 222

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Occassional Paper Series 2012 While the Victorian CHMP system appears similar to the Queensland CHMP system, the Victorian system contains several notable differences.The developer must be advised by an expert in 'anthropology, archaeology or history'. 223This may perpetuate the dominance of archaeological information.Further, and similarly to the South Australian structure, the Victorian legislation does not define what is meant by 'reasonable efforts' to consult.This means what is reasonable is determined on a case-by-case basis.
Of most concern in Victoria is the RAP registration system.The system appears meritorious as RAPs are appointed by a state body of Aboriginal people. 224Native titleholder applicants, and traditional owners who are party to a settlement agreement for the area, are registered as the RAP for the area to the exclusion of all others. 225However, issues arise in the absence of either applicant.In such a case, statutory registration criteria require the state body to consider incorporated applicants with traditional, historical, or contemporary links to the area. 226rguably, these criteria aim to avoid an absence of Aboriginal representation in areas where there are no legally recognised traditional owners. 227The state body, however, have refused to register applicant groups unless they represent only, and all, traditional owners. 228This preference may explain why the state body has only approved nine RAPs in five years, 229 why 'RAPs have approved [only] 338 plans out of a total of 1191 approved cultural heritage management plans', 230 and why the RAP system is currently the subject of a Victorian parliamentary inquiry. 231look at the Northern Territory consultation structure is a fitting end to the tour of Australian duties.There is separate legislation for objects and sacred sites.The Heritage Conservation Act 2008 (NT) requires the Minister for Natural Resources, Environment and Heritage to consider advice from the Aboriginal Areas Protection Authority before issuing a permit to destroy an Aboriginal object.232 The Authority must advise the Minister after consulting the traditional custodians of the object.233 The Sacred Sites Act 1989 (NT) created the Aboriginal Areas Protection Authority.234 All but two of the 12 members are custodians of sacred sites.235 The developer may submit an application to harm a sacred site to the Authority.236 The Authority has 60 days to consult with the traditional custodians of the site 237 and take into account custodian wishes in deciding whether to approve the application.238 The developer may meet with custodians if the developer accepts the costs of the meeting, and custodians and the Authority consent to the meeting.239 The same process applies to approval variations.240 Some herald the Northern Territory structure as best practice, mainly because the structure separates ACH protection from development approvals.241 The structure is certainly unique in prescribing different consultation requirements for objects and place, and subjecting variations to the consultation process.However, it is worth noting that the structure allows the developer to make an application to harm ACH on a purely voluntary basis. 242NSW law reform: the two-tiered model Some of the issues raised in the NPWR evaluations may be redressed by amending the current law.However, developers and Aboriginal interview participants feel that further amendments to a 1974 law may simply add new problems to existing ones.243 This is especially so as the main regulatory feature of the current duty to consult is connection between the developer, the CHAR and the consultation.The power given to the developer is concerning considering the inherent conflict of interest between development and ACH protection. Therrent law could be amended to vest consultation responsibility in the OEH.However, this merely moves the time and cost burden of consultation to government departments with limited resources while doing little to redress the power and capacity inequalities that Aboriginal people face in consultation. It s perhaps for this reason that the NSW Government also considers it time to start anew and has backed this belief with the Working Group for Reform of Aboriginal Cultural Heritage Legislation.244 The impending reform of ACH legislation in NSW provides an opportunity to extend the law reform discussion beyond amendments to the current duty.Several past ACH law reform inquiries have recommended a two-tiered statutory structure to redress some of the bigger issues facing ACH management. 245The two-tiered model comprises two different statutory bodies -an independent state ACH body and local ACH councils.246 As the NSW Working Group summarises: The two-tiered structure ... was intended to allow for decision-making at a local or regional level, with a central body or commission to provide for the monitoring and review of locally made decisions, as well as for the resolution of disputes. 247e key features of the two-tiered model are the vesting of ACH ownership in Aboriginal people, the independent and state-wide Aboriginal management of ACH, the provision of Aboriginal led dispute resolution processes and the devolution of ACH decision-making to local Aboriginal people.While issues relating to self-determination and sovereignty are relevant to any ACH reform discussion, they are beyond the scope of this article.
It is commonly agreed that the issue of who represents Aboriginal people at the state and local level must be resolved in consultation with Aboriginal people. 248However, some interview participant feedback is worth noting.Several participants supported transforming the current A membership hierarchy based on documented genealogy may apply across NSW, including in areas where there are currently no legally recognised traditional owners.
The following discussion considers law reform measures within the two-tiered structure that may support an effective consultation process.An effective consultation process in regard to ACH is one designed to inform the cultural assessment and ACH decision-making. 255If the following discussion reveals that certain law reform measures may support such a process, there is support for the argument that law reform may improve the implementation of consultation practices and fulfilment of consultations purpose.

That statute vests cultural rights to ACH in the local ACH council
One interview participant expressed the personal view that the primary disadvantage of current AHIP consultations is 'the lack of bargaining power Aboriginal people have in the consultation process'. 256The bargaining gap exists because the legal nature of Aboriginal rights in ACH is unresolved, 257 while the legal nature of the developer's fee simple property right is clear and strong. 258The generally greater financial resources of the developer, 259  decrease the gap by separating ACH protection issues from the development approval process. 262he indication in NSW is that independent ACH legislation will integrate protection and development issues. 263In this case, the bargaining gap may be somewhat reduced by vesting ownership of Aboriginal objects with Aboriginal people.However, a property right in objects does not reduce the bargaining gap in consultations concerning places or features of significance to Aboriginal people.
A statutory cultural right in ACH may reduce the bargaining gap in consultations concerning any ACH.The notion of cultural rights permeates modern day international law. 264The United Nations Declaration on the Rights of Indigenous Peoples art 11.1 states: 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 historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 265eating a cultural property right in ACH may help facilitate a consultation environment of equality.This increases the potential for Aboriginal information to inform the cultural assessment and ACH decision-making.

That the state body develop significance assessment criteria
One OEH interview participant noted that a significance threshold test might help resolve conflicts of information. 266It is possible for such a test to form part of a significance assessment standard developed by the state body. 267A standard that outlined the assessment criteria for social, cultural, historical, aesthetic and archaeological values may help significance assessments met the international standards for heritage conservation adopted by Australia in The Burra Charter. 268Most importantly, a significance assessment standard may help resolve conflicts of information, 269 ensure a balanced cultural heritage assessment, 270 and inform ACH decisionmaking. 271

That each local ACH council complete a local cultural heritage survey
ACH must be identified before its value can be assessed. 272Granted, not all Aboriginal objects, places and landscape features can be identified in advance.However, a local cultural heritage survey prepared by each local ACH council, in consultation with an archaeologist and in advance of development proposals arising, may help inform future cultural heritage assessments and ACH decision-making.A local survey may help inform future assessments and decision-making by providing a 'landscape perspective on history and culture', 273 'predict [ing] where presently unidentified places are likely to be found', 274 and indicating areas where precaution may be required in development planning. 275

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That the local survey be registered by an ACH Registrar
Registration of each local survey by an ACH Registrar would ensure the survey met significance assessment standards.Further, an ACH Registrar could record local survey information using a flag system.A flag system allows ACH information to inform the cultural heritage assessment while respecting ACH cultural restrictions and integrity.Ultimately, registration of each survey may allow cultural heritage assessors and ACH decision-makers to consider properly the cumulative impacts to regional cultural values. 276at the developer request a register search at the desktop planning stage Requiring a developer to request a register search at the desktop planning stage allows the ACH Registrar to give the developer the contact details for the relevant local ACH council.The developer is then aware of whom to consult at the desktop planning stage.Certainty of who to consult at the desktop planning stage may eliminate the duplication of consultation processes, and facilitate the early involvement of authoritative Aboriginal people in ACH identification, assessment, and protection. 277

That the developer submit development proposals and prescribed fee to the local ACH council
Requiring developers to submit development proposals to the relevant local ACH council, with the fee currently paid by developers to archaeologists, 278 allows the local ACH council to employ an archaeologist.The role of the archaeologist in this structure is to assist the local ACH council in drafting a CHMP for the development proposal.Empowering the local ACH council to employ an archaeologist may redress the balance between economic, archaeological and Aboriginal information.This increases the potential for authoritative and relevant Aboriginal information to inform the cultural assessment and ACH decision-making.

That the local ACH council prepare a CHMP in consultation with the developer
A local ACH council may need 60 days to conduct an on-site assessment, and draft a CHMP in consultation with the developer and archaeologist.To ensure a CHMP remains relevant for the life of the development, legislation should require a CHMP to accommodate: • local survey information • the results of any on-site assessment • the 'measures to be taken before, during and after [the] activity to manage and protect ACH identified the assessment' 279 • compliance and enforcement responsibilities Vesting responsibility for CHMPs with the local ACH council ensures that authoritative and relevant Aboriginal information informs the identification and assessment of ACH, and the development of protection, conservation, avoidance and mitigation measures.

That mediation be sought through the state body
If the local ACH council and developer fail to reach agreement on the CHMP, the developer must seek mediation through the state body.This may reduce the call on limited government decision-making resources and ensure dispute resolution occurs in an environment that is appropriate and adapted to the consultation parties.

That the CHMP be submitted to the ACH registrar for registration
Submitting a mutually approved CHMP to the ACH Registrar allows the Registrar to ensure the CHMP is consistent with the local survey, and consistent with any legislative, regulatory or state

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Concluding remarks
It is clear from the judgment in Ashton that consultation requirements may in effect defeat the purpose of the duty to consult.Researchers can help to minimise this perverse result by exploring the relationship between statutory consultation requirements and the purpose of the consultation.This article begins the conversation by examining the impact of the law on consultation practices and purposes.
Previous research assumes that key consultation issues relate to good or bad procedures and practices.Evidence related to the case study in this article suggests that the source of consultation issues may be the law.The case study consultation requirements were shown to lack the standards and specifications necessary to ensure the implementation of effective practices.The duty to consult was found to be ill-designed to fulfil the purpose of the consultation.These results suggest that statutory consultation requirements and purposes must be taken seriously for consultation to be more than a mere token gesture.
This article identifies specific requirements for Aboriginal consultations relating to cultural heritage, and how these requirements may be incorporated into ACH legislation.Consideration of these matters is particularly relevant in light of the fact that ACH protection and management is central to the international goals of Aboriginal rights recognition, sustainable development and NRM.More broadly, the law reform discussion indicates that when statutory consultation requirements are tailored to suit to purpose of the consultation and the consultation parties, the law can play a positive role in consultation, engagement and capacity building.

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Journal of Rural Law and Policy 16 Ocassional Paper Series 2012 If there is no ACHB or Native Title Party, the developer must put a notice in the local newspaper inviting any Aboriginal Party to participate in CHMP preparation. 199The Impact of Law on Consultation Practices and Purpose: A Case Study of Aboriginal Cultural Heritage Consultation in NSW _______________________________________________________________________________ International Journal of Rural Law and Policy 18 Ocassional Paper Series 2012

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The Impact of Law on Consultation Practices and Purpose: A Case Study of Aboriginal Cultural Heritage Consultation in NSW _______________________________________________________________________________ International Journal of Rural Law and Policy 8 Ocassional Paper Series 2012
NSWLEC 1249, [85], [88], [97].

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254riginal Cultural Heritage Advisory Committee into an independent state council.249Alternatively,oneAboriginalinterviewparticipantsuggestedthatstatebodymembershipcouldbe 'made up from traditional owner groups who have successfully passed the Federal Court's native title registration test'.250At the local level, further research is required on the appropriate geographical, political or cultural scale for each local ACH council.251Two LocLand Council interview participants suggested the local body might include equal representation from the following groups: Aboriginal parties to Indigenous Land Use Agreements in the area • Aboriginal representatives from the Local Aboriginal Land Council252This recognises the traditional responsibilities of legally recognised traditional owners, and the statutory responsibility of the Local Aboriginal Land Council to protect ACH in the local area.253However,anotherAboriginalinterview participant suggested membership based on documented genealogy:Genealogy is the key to who should speak for country.All Aboriginal groups, organisations and Land Councils should provide this sort of information.There are traditional, displaced and historical Aboriginal people in NSW and each family or clan group in NSW knows where they originally come from -they just need to record and document this.254

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261 the vesting of consultation control in the developer, 260 may exacerbate the bargaining gap.A review of ACH legislation in other Australian jurisdictions suggests that law reform may reduce the bargaining gap and decrease Aboriginal disadvantage in the consultation process.Queensland and Victorian legislation attempts to reduce the bargaining gap by vesting ownership of secret and sacred Aboriginal objects with Aboriginal people.261NorthernTerritory legislation appears to