Dr Evan Hamman, Law and Bills Digest
Following the destruction of Juukan Gorge Aboriginal heritage sites by Rio Tinto (in May 2020) numerous stakeholders have argued that Australian laws for the protection of cultural heritage are inadequate. Such calls for reform are not new. In 1996, a review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984found a ‘lack of Aboriginal involvement and respect for custom’ (p. xiv).
The Joint Committee Report into the destruction at Juukan Gorge, released in October 2021, further highlighted ‘serious deficiencies’ in Aboriginal and Torres Strait Islander cultural heritage protection (p. 149). An independent review of national environmental law, released in October 2020, also found a ‘culture of tokenism and symbolism’ (p. 6) and that ‘Indigenous knowledge and views [were] not fully valued in decision-making’ (p. 59).
In November 2021, the Coalition Government announced a partnership with First Nations People to further investigate reform in this area. In its National Platform, the Australian Labor Party committed to effective protection of First Nations’ cultural heritage. The Australian Greens have also expressed desire for change, promising strong laws to protect First Nations’ cultural heritage.
What is cultural heritage?
Cultural heritage does not have a universally
accepted definition. However, it can include both tangible and
intangible aspects (for example, objects, artefacts and remains, traditional
knowledge, oral traditions, stories and rituals). Whilst ‘cultural heritage’ is
used in other contexts, for example, in relation to European
cultural heritage (including in Australia),
this article focuses specifically on the cultural heritage of Aboriginal and
Torres Strait Islander people (at times referred to as Aboriginal
heritage or Indigenous
The use of the language ‘cultural heritage’ in Australia, is in large
part due to the adoption of the 1972 Convention
Concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention). The Convention’s definition of cultural
heritage, found in Article 1, focuses on tangible heritage including
monuments, groups of buildings and sites, although there is scope to include cultural landscapes, including, for example,
Australia’s tentative listing for World Heritage inscription
of the 50,000-year-old Murujuga
Cultural heritage at the Commonwealth level
The Commonwealth framework for identifying and protecting cultural
heritage comprises several pieces of legislation. Each of
these utilises a different perspective on cultural heritage. The World Heritage
Convention’s definition of cultural heritage, for instance, is used by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to help protect Australia’s World Heritage sites and fulfill
Australia’s obligations under the Convention. Not all of Australia’s World
Heritage sites are, however, recognised under the Convention for holding Aboriginal
and Torres Strait Islander heritage. Those that are include:
This does not mean that Aboriginal and Torres Strait Islander people
do not have important cultural connections to other World Heritage-listed sites
in Australia. The Great Barrier Reef, for instance, is not only listed
under the Convention for its natural values, but is also home to approximately 70 Aboriginal and Torres Strait Islander groups.
Places of cultural heritage significance which are not inscribed as
World Heritage may be recognised in other ways. For example, National Heritage Places under the EPBC Act can include Aboriginal heritage such as the Brewarrina Aboriginal Fish Traps (Baiame's Ngunnhu),
the Budj Bim National Heritage Landscape and the Dampier Archipelago (including Burrup Peninsula).
In addition, Aboriginal and Torres Strait Islander cultural heritage
may be recognised in sites included on the Commonwealth Heritage List. Examples include Jervis Bay Territory and Uluru‑Kata Tjuta National Park.
Heritage under the EPBC Act
The EPBC Act recognises 3 categories of heritage:
- World Heritage Sites are protected for their Outstanding Universal Value under the World Heritage Convention. Inscribed values may be cultural or natural, or both.
- National Heritage Places are places of natural, historic or Indigenous significance to Australia, as a nation.
- Commonwealth Heritage Places are places of historic, natural or Indigenous significance, where the Australian Government has ownership or control. They typically include places connected to defence, maritime security or communications.
Indigenous cultural heritage may be included in one or more of these lists and may also be included in state or territory registers. Other protected areas under the EPBC Act (such as Ramsar Wetlands of International Importance) can also include cultural heritage, for example, where cultural values are described in the ecological character of a Ramsar wetland.
In addition to the EPBC Act, the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act), focuses on ‘areas and objects that are of particular
significance to Aboriginals in accordance with Aboriginal tradition’ (section
4). The ATSIHP Act, discussed further below, is considered legislation of last resort. Under the Act, Australia’s
Environment Minister can make Ministerial declarations to protect culturally
significant areas from threats such as mining, development or other activities.
While not explicitly defining ‘cultural heritage’, the Native Title Act 1993 (Cth) does recognise
‘communal, group or individual rights and interests of Aboriginal peoples or
Torres Strait Islanders in relation to land or waters’ (that is, ‘Native Title
Rights and Interests’ under section 223(1)). Accordingly, native title can
operate as an alternative mechanism to protect cultural heritage although some have argued it is ineffective in doing so.
Cultural heritage at the state and territory level
At the state and territory level, cultural heritage is again conceived
of slightly differently. For example, Queensland’s Aboriginal
Cultural Heritage Act 2003 protects ‘Aboriginal cultural heritage’
which is defined in section 8 as:
anything that is a significant Aboriginal area
or object [in Queensland]; or if there is evidence, of archaeological or
historic significance, of Aboriginal occupation of an area …
There is similar legislation in Queensland that protects Torres Strait Islander cultural heritage.
Western Australia, which has recently introduced the Aboriginal Cultural Heritage Act 2021, also uses the term ‘Aboriginal cultural heritage’ which
is defined in section 12(a) as:
tangible and intangible elements that are
important to the Aboriginal people of [Western Australia], and are recognised
through social, spiritual, historical, scientific or aesthetic values, as part
of Aboriginal tradition.
Similarly, Victoria’s Aboriginal
Heritage Act 2006—often considered best practice in
Australia—uses the phrase ‘Aboriginal cultural heritage’ defined in section
4 to include ‘Aboriginal places, Aboriginal objects and Aboriginal
ancestral remains’ which are, in turn, further defined.
In summary, there
are a variety of ways (p. 190) in which international, federal, state and
territory laws define or recognise Indigenous cultural heritage in Australia. However,
the legal protection of that heritage typically depends upon the interpretation
of its ‘value’ or ‘significance’, which will often need to be proven before any
protection can occur.
How is cultural heritage protected in Australia?
The majority of cultural heritage is protected
by state and territory legislation. However, as noted above, the Australian
Government protects certain listed sites under the EPBC Act and ‘last
minute’ declarations can also be made under the ATSIHP Act. In this
regard, the Australian Government’s role has often been seen as ‘stepping in’ when
state or territory laws fail to protect cultural heritage.
Some state and territory laws make it an offence to
damage cultural heritage (for example, Victoria’s Aboriginal Heritage Act
2006). In other cases, state law imposes a ‘duty’ to avoid damaging cultural
heritage, for example, in the case of Queensland’s Aboriginal Cultural
Heritage Act 2003. In Queensland, the development of a cultural
heritage management plan may assist in meeting this duty.
Federal cultural heritage law operates in
addition to state and territory law. The EPBC Act provides for a development
assessment regime focusing on significant
impacts to Matters of National Environmental Significance, such as World
Heritage sites and Commonwealth and national heritage places. Assessment (and
approval) of significant impacts on heritage at any of these places is thus
required in addition to the state and territory level. For major projects, it
is possible for a single impact assessment procedure to occur through a
federal- state bilaterally
agreed assessment process.
Significant impacts on heritage under the EPBC Act
‘Significant impact’ is not defined under the EPBC Act, but departmental guidelines do provide some non-binding guidance. The guidelines suggest that an action is likely to have a significant impact on the cultural heritage values of a World Heritage site ‘if there is a real chance or possibility’ that it will, for example:
- restrict or inhibit the existing use as a cultural or ceremonial site, causing its values to notably diminish over time
- remove, damage, or substantially disturb cultural artefacts, or ceremonial objects
- permanently damage or obscure rock art or other cultural or ceremonial features.
Similarly, an action is likely to have a ‘significant impact’ on the cultural heritage values of a National Heritage place ‘if there is a real chance or possibility’ that it will, for example:
- restrict or inhibit the continuing use of the place as a cultural or ceremonial site causing its values to notably diminish over time
- permanently diminish the cultural value of the place for a community or group to which its National Heritage values relate
- destroy or damage cultural or ceremonial, artefacts, features, or objects.
For significant impacts on Commonwealth Heritage places, other departmental guidance applies.
In addition to the EPBC Act, the ATSIHP
Act establishes a system whereby Aboriginal and Torres Strait Islander
people can apply
to the Environment Minister for protection of areas, objects or classes of
objects that are of particular significance to them from threats of injury or
desecration. Section 22 of the ATSIHP Act makes it an offence to breach
a ministerial declaration. There are different types of declarations under the ATSIHP
Act, ranging from emergency declarations (for example, 30 days) to longer-term protections (for example, 10 years). It may be the case that an
emergency declaration is first made, followed by a longer‑term
In certain instances, Australia’s Federal Court has
the power to overturn ministerial declarations on the basis of judicial review.
It can, for instance, hear appeals from Aboriginal and Torres Strait Islander
people reviewing a ministerial decision to refuse protection. One example is
the 2003 case of Williams v Minister for the Environment and Heritage.
More recent examples of caselaw under the ATSIHP Act can be found in the
Joint Standing Committee on Northern Australia’s report into Juukan Gorge.
Under sections 9 and 10 of the ATSIHP Act, applications
for protection of cultural heritage can be made verbally or in writing. Generally
speaking, a case needs to explain the place’s cultural heritage significance
and why it needs protection in the face of the threats. At a minimum, a 30-day
emergency declaration may take the minister 1–2
months to process, while a longer‑term declaration may take 6–9 months. Under the Act, the minister cannot make
a declaration without first consulting with state and territory governments
about whether their laws provide effective protection for the area.
Table 1: Examples of declarations made under the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (Cth).
|Wahluu/Mount Panorama, Bathurst, NSW
go-kart development by the Bathurst Regional Council.
|Bellwood Sacred Site, Nambucca Heads, NSW
residential development, forestry activities and public access.
|Butterfly Cave, West Wallsend, NSW
development, land clearing and other measures increasing public access.
|Atnyere Arrkelthe, Atniltye and Urewe Aterle,
Junction Waterhole, Todd River, north of Alice Springs Northern Territory
of a flood mitigation dam.
Government Gazettes. Note, longer-term declarations are in some cases
preceded by shorter emergency declarations.
Weaknesses in the current approach
Over the last 3 decades, several major reports
have concluded that Australia’s Indigenous cultural heritage protection systems
are ineffective. The Juukan Gorge disaster in WA and the recent controversy
over the reburial of remains in NSW are
recent high-profile examples that have drawn attention to this issue, and will likely
further the debate about how Aboriginal cultural heritage is identified,
recognised and protected through law.
The challenges for Indigenous cultural heritage
protection are complex and wide-ranging. Some of the weaknesses identified in
the Juukan Gorge inquiry include:
of Australia’s EPBC Act found similar shortcomings when it
comes to protecting Indigenous cultural heritage, including that Indigenous
knowledge and views
have been diluted in the formal provision of advice to decision-makers (p.
6). The 1996 review of the ATSIHP Act found a lack of Aboriginal
involvement and respect for custom (p. xiv).
Suggestions for reform have included, among
The challenges in this area will
likely take some time to address. However, there appears to be current
momentum from both major and minor parties, and Aboriginal and Torres Strait
Islander stakeholders for meaningful reform.
Any reforms are likely to occur in a broader
context relating to the rights of Aboriginal and Torres Strait Islander people
in Australia, including, for example, the 46th Parliament’s Senate inquiry
into the Rights of Indigenous Peoples in Australia, as well as the
Australian Labor Party’s commitment to implementing
the Uluru Statement from the Heart.
Graeme Samuel, Independent Review of the EPBC Act: Final Report, (Canberra: Department of Agriculture, Water and the Environment, 2020).
Heritage Chairs of Australia and New Zealand, Dhawura Ngilan: a Vision for Aboriginal and Torres Strait Islander Heritage in Australia, (Canberra: Department of Agriculture, Water and the Environment, 2021).
Joint Standing Committee on Northern Australia, Never Again: Inquiry into the Destruction of 46,000 Year Old Caves at the Juukan Gorge in the Pilbara Region of Western Australia: Interim Report, (Canberra: The Committee, 2020).
Joint Standing Committee on Northern Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge, (Canberra: The Committee, 2021).
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