Dr Evan Hamman, Law and Bills Digest

Key issue

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 cultural heritage).

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 Landscape.

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:

• Kakadu National Park
• Tasmanian Wilderness
• Uluru-Kata Tjuta National Park
• Willandra Lakes Region
• Budj Bim Cultural Landscape.

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.

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.

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 declaration.

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).

Source: Commonwealth 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:

• the lack of a nationally coordinated approach for protection and the failure of state and territory laws to protect Indigenous cultural heritage
• the prioritisation of development over cultural heritage protection and the interests of Aboriginal and Torres Strait Islander people
• a lack of adequate compliance and enforcement concerning heritage protection
• insufficient emphasis on intangible cultural heritage (including in legislation) ‘despite the fact that it is an internationally recognised legal standard’
• the requirement that Aboriginal and Torres Strait Islander people ‘take the initiative‘ to protect their cultural heritage (as opposed to the law establishing protection at the outset)
• clauses in agreements with Aboriginal and Torres Strait Islander people that limit or prohibit seeking protection for heritage through other means.

The review 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 other things:

• making the Minister for Indigenous Australians responsible for all Aboriginal and Torres Strait Islander cultural heritage matters
• the meaningful inclusion, in legislation, of the requirement for Free, Prior and Informed Consent
• the establishment of a national standard for Indigenous Engagement and Participation in Decision-Making under the EPBC Act (p. 225)
• the need for a new independent statutory body in relation to cultural heritage decision-making (see also the recommendations from a previous review of the ATSIHP Act, p. xvii)
• appropriate mechanisms for reviewing decisions relating to Aboriginal cultural heritage
• ratifying the Convention for the Safeguarding of the Intangible Cultural Heritage 2003
• addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the native title regime.

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.

Further reading

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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