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The information contained in this fact sheet is current as at 23 April 2008

Topic 6 – Heritage

6.1 Commonwealth Heritage Protection Law

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 provides protection for the following types of heritage places and items:

• World Heritage;1
• National Heritage;2 and
• Commonwealth Heritage.3

The Australian Heritage Council Act 2003 provides for the listing of natural and cultural heritage places on the register of the National Estate.4

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 provides protection for Indigenous heritage items and places in certain circumstances.5

6.1.1 World Heritage

The Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) provides for the establishment of an international list of places of 'outstanding universal natural or cultural heritage value.'6

The Environment Protection and Biodiversity Conservation Act provides for the Australia-wide implementation of the World Heritage Convention in Australia. World heritage is categorised as a matter of national significance under the Act.7 For more information about the listing and protection of World Heritage under Commonwealth law, see Section 5.2.2 - Commonwealth Protected Areas Law.

6.1.2 National Heritage

The Environment Protection and Biodiversity Conservation Act 1999 provides for the listing and protection of places on the National Heritage List.8

The National Heritage List is intended to include natural, Indigenous and historic places with outstanding heritage value.9 The list may include important places outside Australia (such as Gallipoli).10 In order to be included on the list, a place must satisfy at least one of the National Heritage criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000.11

Criteria for inclusion on the National Heritage List include:

• importance in the course of Australia 's natural or cultural history;
• possession of uncommon or endangered aspects of Australia 's natural or cultural history;
• potential to contribute to an understanding of Australia 's natural or cultural history;
• importance in demonstrating the key characteristics of a class of natural or cultural places;
• importance in exhibiting aesthetic characteristics valued by a community or cultural group;
• importance in demonstrating creative or technical achievement at a particular period;
• special association with a particular community for social, cultural or spiritual reasons;
• special association with the life or works of persons of importance in Australia 's history;
• importance as part of Indigenous tradition.12

National Heritage Listing

Any person may nominate a place for inclusion on the National Heritage List.13 If a person nominates a place for inclusion on the list, the Minister for the Environment, Water, Heritage and the Arts must refer the nomination to the Australian Heritage Council to assess whether the place meets the National Heritage criteria.14 The Minister may require further information from the person who made the nomination.15

After the Heritage Council has made its assessment, the Minister may, but does not have to, invite comments on the proposal to include the place in the List.16 The Minister then makes the final decision on whether to list the place, but must take into consideration the Heritage Council's assessment and any comments received (if the Minister has invited comments).17

To view a current version of the National Heritage List, visit the Department of Environment, Water, Heritage and the Arts website: http://www.environment.gov.au/heritage/national/index.html

The list contains places such as the Budj Bim National Heritage Landscape, the Royal Exhibition Building and Carlton Gardens , the Sydney Opera House, the Dinosaur Stampede National Monument, the Kurnell Peninsula and the Eureka Stockade Gardens.

Emergency Listing

There are provisions for emergency listing of the national heritage values of a place if the Minister believes that those heritage values are under threat.18 The Minister can list the place before referring it to the Heritage Council19 and must take reasonable steps to advise any owners or occupiers of the place.20 Any person may request that a place be included on the National Heritage List under the emergency listing provision,21 and, if the Minister does not list the place within ten business days after receiving the request, the Minister must:

• publish notice of that on the internet;22 and
• provide to the person who made the nomination and anyone else who requests them, reasons why the Minister has not listed the place.23

Protection of National Heritage

National Heritage is protected under the Environment Protection and Biodiversity Conservation Act as a 'matter of national environmental significance.'24 For more information on the federal environmental assessment and approval process, see Topic 2.2 - Commonwealth Environmental Assessment Law.

For National Heritage places that are entirely within Commonwealth lands, the Commonwealth must prepare and implement management plans consistent with the management principles set out in the Environment Protection and Biodiversity Conservation Regulations.25

For properties on the National Heritage List that are not entirely within Commonwealth lands, the Commonwealth must do its best to prepare and implement management plans in co-operation with the relevant States and Territories.26

Commonwealth agencies must take all reasonable steps to perform their functions in accordance with these management plans and the National Heritage Management Principles set out in the Environment Protection and Biodiversity Conservation Regulations.27

6.1.3 Commonwealth Heritage List

The Commonwealth Heritage List records natural, Indigenous and historic places that:

• have significant, rather than outstanding , heritage values; and
• are in Commonwealth areas or owned or leased by the Commonwealth Government.28

In order to be listed, a place must satisfy at least one of the Commonwealth Heritage criteria set out in the Environment Protection and Biodiversity Conservation Regulations.29 These criteria are identical to the criteria for the National Heritage List set out above, except that they refer to the place having significant heritage value rather than outstanding heritage value.30 However, this distinction is not defined under the Environment Protection and Biodiversity Conservation Act or the Environment Protection and Biodiversity Conservation Regulations, nor has it been tested in the courts.

The list may include places outside Australia that are owned or leased by the Commonwealth Government.31

Commonwealth Heritage Listing

The nomination and listing process is the same as for the National Heritage List.32

Protection of Commonwealth Heritage

Actions on Commonwealth land which are likely to have a significant impact on the environment require federal approval under the Environment Protection and Biodiversity Conservation Act.33 The definition of the environment includes the heritage values of places.34 Commonwealth agencies that own or control the land must prepare management plans and ensure that the heritage values of the place are protected.35

6.1.4 The National Estate

The Australian Heritage Council has been established to promote the appreciation, identification and care of the National Estate.36 The Register of the National Estate identifies places (including buildings) which have aesthetic, historic, scientific, or social significance or other special value for future generations as well as for the present community.37 There are more than 13,000 places listed on the Register of the National Estate, including over 9,800 historic places, 2,000 natural places and 900 Aboriginal places.38

National Estate Listing

Any part of the natural or cultural environment is eligible for listing. Reasons that a place or building may be considered to have 'special value' can include: its importance to Australia 's natural or cultural history; rare and endangered species that might live there; or a strong association with a particular community for social, cultural or spiritual reasons.

Any person may nominate a place to be registered. State and local governments and voluntary organisations can also make nominations.39 The Heritage Council must consult with the owner or occupier of the place, the State or Territory and local government authority40 and, if the place has Indigenous heritage value - each person who has Indigenous rights or interests in the place.41

If the Heritage Council decides to register the place, it must provide public notice of the listing and provide a statement of reasons if requested. The Register must be available to the public on the internet.42

Protection of the National Estate

Under the Environment Protection and Biodiversity Conservation Act, the Minister must have regard to information in the Register of the National Estate in making any decision under the Act to which the information is relevant.43 In other words, the listing of a place on the Register of the National Estate does not provide express legal protection to that place, but merely ensures that its registration is considered by the Minister when determining whether the place is an item of national heritage.

Any actions taken by Commonwealth agencies, or any actions on Commonwealth land which are likely to have a significant impact on the environment,, requires the approval of the Minister.44 The definition of the 'environment' in section 528 of the Environment Protection and Biodiversity Conservation Act includes the heritage values of places. Therefore, any places on the Register of the National Estate that are on Commonwealth land or that may be affected by actions undertaken by Commonwealth agencies are afforded a certain degree of procedural protection under the Act.

6.1.5 Protection of Indigenous Heritage

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is intended to provide additional protection from injury or desecration of artefacts and areas which are of particular significance to Aboriginal peoples and traditions.45

The Aboriginal and Torres Strait Islander Heritage Protection Act provides for emergency declarations to be made for the protection of significant Aboriginal areas or objects which are under 'serious or immediate threat of injury or desecration'.46

The Aboriginal and Torres Strait Islander Heritage Protection Act protects 'significant Aboriginal areas' and 'significant Aboriginal objects'. A 'significant' area or object is one of particular significance to Indigenous people in accordance with Aboriginal or Torres Strait Islander tradition.47

An application for protection of a specified area or object under threat can be made orally or in writing by an Aboriginal person or Torres Strait Islander.48

The Minister for Families, Housing, Community Services and Indigenous Affairs can make declarations to protect areas and objects if the area or object is under threat of injury or desecration (used, treated or affected in a manner inconsistent with Aboriginal tradition) and State law does not effectively protect the area.49

The Minister may make emergency declarations50 or long-term declarations.51 Emergency declarations last for thirty days,52 but may be extended for a further thirty days.53 The Minister may not make a declaration in relation to an area or object located in a State, the Northern Territory or Norfolk Island unless he or she has consulted with the appropriate Minister of that State or Territory.54 These declarations may "contain provisions for and in relation to the protection and preservation of the area from injury or desecration".55

Officers authorised by the Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 198456 may also make emergency declarations, lasting up to 48 hours in relation to Indigenous heritage areas and objects.57

The protection of Indigenous heritage under State law in New South Wales is considered in Topic 6.2 - New South Wales Heritage Protection Law below.

Indigenous Heritage and Native Title Rights

The Native Title Act 1993 provides a legislative framework for the recognition and protection of common law native title rights.

In certain circumstances, registered native title holders and claimants have a right to negotiate in relation to the protection and management of heritage areas or sites within the lands and waters covered by their native title claim. Native title rights will operate where they have not been extinguished by other rights.58

For example, where a consent authority (decision-maker) proposes to allow mining or mineral exploration, native title holders or claimants are to be consulted.59 If no agreement is reached, the parties may seek a determination by the National Native Title Tribunal (or accredited State body). The criteria to be considered in making the determination include the cultural significance of the place.60 However the criteria also include economic considerations and the public interest. Aboriginal significance is simply a matter to be considered by the National Native Title Tribunal in reaching its decision.

For further information on native title and cultural heritage protection, visit the National Native Title Tribunal website: http://www.nntt.gov.au/

References

1. Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 1, Subdivision A and Part 15, Division 1.
2. Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 1, Subdivision A and Part 15, Division 1A.
3. Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 2, Subdivision AA and Part 15, Division 3A.
4. Australian Heritage Council Act 2003 (Cth), s 22.
5. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), Part 2.
6. Further information is available from the website of the World Heritage Committee: whc.unesco.org.
7. Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3, Division 1, Subdivision A.
8. Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 15, Division 1A.
9. "National Heritage values" are defined in section 324D of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
10. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 324E.
11. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 324C, 324D; Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg. 10.01A.
12. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg. 10.01A.
13. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324E(1).
14. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324E(2). Note that certain exceptions apply, for example if the Minister is satisfied that the nomination is vexatious, frivolous or not made in good faith: see section 324E(6).
15. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324E(4)
16. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324H(1A).
17. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324J.
18. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324F.
19. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324F(2).
20. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324F(5)(b).
21. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324F(6).
22. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324F(6)(a).
23. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 324F(c).
24. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 15B and 15C.
25. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 324S and 324Y; Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg 10.01E.
26. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s.324X(2); Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg 10.01E.
27. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s.324X(3).
28. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg 10.03A ; Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 341C(2).
29. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 341C and 341D.
30. Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg. 10.03A.
31. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 341C(ii); Environment Protection and Biodiversity Conservation Regulations 2000 (Cth), reg. 10.03A.
32. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 341E to 341R.
33. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 26-28 and 34.
34. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 26-28.
35. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 341S - 341ZE.
36. The Australian Heritage Council replaced the Australian Heritage Commission in 2003 according to the Australian Heritage Council Act 2003 (Cth).
37. For the Criteria for the Register of the National Estate see http://www.ahc.gov.au/register/furtherinfo/criteria.html .
38. To search the Register of the National Estate go to http://www.deh.gov.au/cgi-bin/ahdb/search.pl .
39. The nomination forms are available at http://www.ahc.gov.au/register/furtherinfo/nominations.html .
40. Australian Heritage Council Regulations 2003 (Cth), reg. 4.
41. Australian Heritage Council Act 2003 (Cth), s. 22.
42. Australian Heritage Council Regulations 2003 (Cth ) , reg. 5(3).
43. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 391A.
44. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 26-28, 34.
45. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 4.
46. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 9, 12 and 18
47. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 3.
48. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s10
49. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss. 9, 10.
50. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 9.
51. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 10.
52. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 9(2).
53. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 9(3).
54. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 13(2).
55. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s. 11(b).
56. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 17 .
57. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 18 and 19.
58. Native Title Act 1993 (Cth), s. 11(2). Note: native title rights may be extinguished by post-1993 legislation.
59. Native Title Act 1993 (Cth), ss. 26, 29, 35 .
60. Native Title Act 1993 (Cth), s. 39.

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