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8.1 Aboriginal Cultural Heritage

8.1.1 What is Aboriginal cultural heritage?

The law defines cultural heritage as objects and places that are significant to Indigenous people under Aboriginal or Torres Strait Islander tradition.

• ‘Aboriginal objects' are deposits, objects or material evidence (not being a handicraft made for sale) relating to Aboriginal habitation of New South Wales1 and include things which are associated with traditional Aboriginal communities such as stone tools, art sites, burial grounds and Aboriginal remains as well as contemporary society.
• An ‘Aboriginal place' is a place which is or was of special significance with respect to Aboriginal culture, and which is also recognised as ‘significant' by the Minister for Climate Change and the Environment.2 In other words, for an Aboriginal place to be protected under the National Parks and Wildlife Act 1974 the Minister needs to be convinced that a place should be declared an Aboriginal place.

For more information about Aboriginal cultural heritage please refer to the EDO publication 'Caring for Country'.

8.1.2 How is Aboriginal cultural heritage protected?

There are several methods of protecting Aboriginal cultural heritage. These methods of protection exist at a national, State and local level and are briefly outlined below.

8.1.2.1 National Protection

8.1.2.1.1 Protection as a World Heritage Area

Any cultural heritage that falls within a World Heritage Area is protected as part of that area and includes “exceptional cultural tradition” that is living or disappeared. World Heritage Areas are areas of outstanding universal value. Federal Government approval is needed before anyone can do anything that will have a significant effect on a World Heritage Area or the values of such an area.3

8.1.2.1.2 Protection as National Heritage

The Federal Government also protects cultural heritage areas which are on the National Heritage List.4 You can nominate a place for inclusion on the National Heritage List if it satisfies at least one of the National Heritage criteria.

Once a place is nominated, the Heritage Council will decide whether the place meets the National Heritage List criteria. The Heritage Council must consult owners, occupiers and Indigenous people with rights or interests in the nominated area.

The Federal Minister for Environment decides whether a place will be listed. The Minister must take into consideration the Heritage Council's assessment, and received comments.

8.1.2.1.3 Protection under the Commonwealth Heritage List

The Commonwealth Heritage List comprises natural, Indigenous and historic heritage places on Commonwealth lands and waters or under Federal Government control.

The Commonwealth Heritage List criteria are applied in determining the heritage values of a place.

8.1.2.1.4 Protection under the Register of National Estate

The Register of National Estate is maintained by the Australian Heritage Council and identifies places which have special value for present and future generations. There are approximately 13,000 places listed on the Register, with 900 having Indigenous significance.

8.1.2.1.5 Protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984

The Act protects from injury or desecration areas and objects in Australia or Australian waters that are significant to Indigenous people in accordance with Aboriginal or Torres Strait Islander tradition.5 An Aboriginal or Torres Strait Islander person, or a person on their behalf, can apply to the Minister for Aboriginal Affairs verbally or in writing for protection of a specified area or object.6

The Minister may make an emergency declaration protecting areas and objects that are at immediate risk of injury or are at risk of being used in a manner that is inconsistent with Aboriginal tradition.7

8.1.2.1.6 Protection under Native Title

If you are a Native Title holder, you have the right to negotiate for the protection of the places over which Native Title applies.8

The things that are considered when the government is deciding whether certain activities should go ahead in places subject to Native Title rights include: the cultural significance of the place, economic considerations and the public interest.

8.1.2.2 State Protection

8.1.2.2.1 Protection under the National Parks and Wildlife Act 1974

This is the main law in NSW that protects Aboriginal cultural heritage.

The Director-General of the Department of Environment, Climate Change and Water (DECCW) is responsible for protecting Aboriginal cultural heritage in NSW. The Aboriginal Cultural Heritage Advisory Committee advises the Minister on matters relating to the identification, assessment and management of Aboriginal cultural heritage.9

There are five main ways that the NSW Government protects Aboriginal cultural heritage under the National Parks and Wildlife Act 1974 :

• Aboriginal areas

Land may be dedicated as an ‘Aboriginal area' to identify, protect and conserve areas associated with a person, event or historical theme, or containing a building, place, object, feature or landscape that is of natural or cultural significance to Aboriginal people or of importance in improving public understanding of Aboriginal culture and its development. Lands within an Aboriginal area are reserved for the purpose of preserving, protecting and preventing damage to Aboriginal objects or Aboriginal places on that land.10

• Stop work orders

The Director-General of DECCW may issue a stop work order for up to 40 days if an action that is being, or is about to be, carried out is likely to significantly affect an Aboriginal object or Aboriginal place.11

• Interim Protection Orders

The Minister for Environment may make an interim protection order in respect of an area of land which has natural, scientific or cultural significance.12 Interim protection orders are valid for the period that is specified in the order but no longer than 2 years.13

• Conservation agreements

The Minister for Environment may make conservation agreements with landowners in relation to areas in which Aboriginal objects or Aboriginal places of special significance are situated.14 A conservation agreement my restrict the use of the area and may require the preservation of the area.

• Criminal offences

There are a number of criminal offences under the National Parks and Wildlife Act that relate to cultural heritage, including penalties for damage and destruction of items or places of heritage value.15 The approach of the courts has varied. In one judgement the court adopted a restorative justice approach including mediation, while in another the penalty was reduced to compensate for loss of land value due to the cultural heritage site.16

The National Parks and Wildlife Amendment Act 2010 introduces amendments to the National Parks and Wildlife Act 1974 with effect from 1 October 2010, including:

• two new offences of harm or desecration to Aboriginal objects;

• the definition of ‘harm' includes destroying, defacing or damaging an object or place, and in relation to an object, it includes removing the object from the land on which it had been situated;17

• knowingly harming or desecrating an Aboriginal object attracts a maximum penalty of up to $275,000 for individuals and/or one year imprisonment;18

• the strict liability offence of harming an Aboriginal object carries a penalty of $55,000 for individuals and $220,000 for a corporation. For harming or desecrating an Aboriginal place, the penalty increases to $550,000 and/or two years imprisonment for an individual or $1.1 million for a corporation;19

• exemptions for these offences include the engagement by Aboriginal people in traditional Aboriginal cultural activities, declared emergencies, emergency fire-fighting or bush fire hazard reduction work done in accordance with the Rural Fires Act 1997, conservation work undertaken by DECCW or activities that fall within the terms of a conservation agreement20

8.1.2.2.2 State Heritage Register

Items of natural or cultural heritage may be protected by listing them on the State Heritage Register.21 This list may include cultural heritage items or places but it does not include ‘Aboriginal relics'.

The Minister for Planning decides what gets listed but the Heritage Council can recommend listings. If you want Aboriginal places or items of cultural heritage listed on the State Heritage Register, you should lobby the Heritage Council or the Minister.

Items that are listed on the State Heritage Register are legally protected under the Heritage Act 1977 and cannot be demolished, redeveloped or otherwise altered without an approval from the Heritage Council.

8.1.2.3 State and Local Government Protection

8.1.2.3.1 Protection under the Environmental Planning and Assessment Act 1979

Under NSW planning laws, all development and planning takes place in accordance with State Environmental Planning Policies and local environmental plans (collectively known as environmental planning instruments22 ) that set out what types of development can take place on which areas and what areas are protected.

Local environmental plans (LEPs) must conform to the Standard LEP template designed by the State Government. This requires councils to redraft LEPs that do not conform to the template. In doing so, council must provide for the conservation and management of Aboriginal heritage.23 This means that the council must complete an Aboriginal Heritage Survey and consult with local Aboriginal people to prepare a heritage plan. Aboriginal bodies such as Land Councils can tell council about items and places of heritage significance which will bring the items or places within the heritage plan.

Public involvement with LEPs

Before a new LEP can come into force, it must be publicly exhibited and the public is allowed to comment on the provisions of the LEP. This is an opportunity for you to have a say in the level of protection your council gives to cultural heritage in your area.

You can have your say by making a written submission during the exhibition period.24

The Minister for Planning decides whether to approve a LEP. Once the Minister has approved the LEP, any development that is consistent with the LEP can be approved by the council. It is therefore important that you look carefully at the LEP and raise any objections during the exhibition period; otherwise you may not be able to challenge a development later on.

Most councils have Heritage Officers and Aboriginal Liaison Officers who can give you information and advice on cultural heritage matters.

What are the consequences if cultural heritage is destroyed/damaged illegally?

It is an offence to do any of the following without a permit:

• disturb or excavate any land in order to discover an Aboriginal object;

• disturb or move an Aboriginal object that is the property of the Crown;

• take or remove an Aboriginal object from a national park, historic site, state conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area; or

• intentionally damage an Aboriginal object or Aboriginal place.25

Does the protection of cultural heritage guarantee that it will not be destroyed?

Even when cultural heritage is protected, there is no guarantee that it will not be damaged or destroyed. Cultural heritage may be destroyed with prior consent from the relevant government department. For example, the Director-General of the National Parks and Wildlife Service may give permission for the destruction of cultural heritage.26

Aboriginal cultural heritage objects may be deemed the property of the Crown.27

The Director-General may issue permits to damage, destroy and remove objects and places of cultural heritage value. Such permits allow certain actions that would ordinarily be offences under the National Parks and Wildlife Act 1974, such as to intentionally damage an Aboriginal object.28

How can I challenge a consent to destroy?

If consent has been granted to destroy cultural heritage, you should seek legal advice on the best way to challenge the decision.

You should not rush into legal action. It is important to do some background research first and make enquiries, such as: who are the people seeking to destroy cultural heritage? Was the consent issued appropriately? Who was consulted?

If you have trouble accessing information, information access laws may assist you. It is always better to ask for information first and then make formal request for information as a last resort. The EDO may assist you with making formal request for information.

Am I entitled to be consulted about decisions to destroy cultural heritage?

DECCW has Aboriginal Cultural Heritage consultation requirements that set out when and how Aboriginal people are to be consulted about the significance of Aboriginal cultural heritage.

Any person who is aware of the location of an Aboriginal object must notify DECCW within a reasonable time after first becoming aware of its location. Failure to notify DECCW constitutes an offence under the National Parks and Wildlife Act .29 An application may be made to DECCW for a permit to disturb, remove, excavate or damage the object30 or a consent to destroy, deface or damage the object.31 DECCW requires applicants to consult with the Aboriginal community about the Aboriginal cultural heritage values (cultural significance) of Aboriginal objects and places within the area being considered for development.

If you wish to be consulted you can register your interest with the applicant and this gives you a right to be consulted on certain issues, including how the cultural and archaeological assessments were conducted and a right to provide feedback on the outcomes of such reports. If you don't register in time, you still have a right to be consulted.

DECCW will then make a decision to either grant or refuse the application. If the application is approved, your views may still be taken into account by having the approval subject to certain conditions.

How can I find out if there are Aboriginal objects or places on my land?

DECCW keeps a register of all Aboriginal objects and Aboriginal places in NSW. The register is called the Aboriginal Heritage Information Management System.32 You can search the Register to see if anything is listed on your land or that of other people. The fact that there is no listing does not mean that there is nothing of cultural heritage significance on the land.

1. National Parks and Wildlife Act 1974, s. 5
2. National Parks and Wildlife Act 1974, s. 84
3. Environment Protection and Biodiversity Conservation Act 1999, s. 12
4. Under the Environment Protection and Biodiversity Conservation Act 1999, s. 15B
5. Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s. 4
6. Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s. 10
7. Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s. 9. The emergency declaration lasts for 30 days and may be extended for a further 30 days. Officers authorised by the Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 can also make emergency declarations for no more that 48 hours in relation to Indigenous heritage areas and objects.
8. Native Title Act 1993, s. 25.
9. National Parks and Wildlife Act 1974, s. 28.
10. National Parks and Wildlife Act 1974, ss. 30K and 62.
11. National Parks and Wildlife Act 1974, s. 91AA.
12. National Parks and Wildlife Act 1974, s. 91A.
13. National Parks and Wildlife Act 1974, s. 91D (1).
14. National Parks and Wildlife Act 1974 , s. 69C(1)(d).
15. National Parks and Wildlife Act 1974 , s. 86.
16. See Garrett v Williams (2007) 151 LGERA 92 & Plath v O'Neill [2007] NSWLEC 553
17. National Parks and Wildlife Amendment Act 2010, Sch 1 s. 5(1)
18. National Parks and Wildlife Amendment Act 2010, Sch 1 ss. 86(1), 86(3). Where there are circumstances of aggravation the penalty increases for individuals up to $550,000 and/or two years imprisonment and for a corporation $1.1 million.
19. National Parks and Wildlife Amendment Act 2010, Sch 1 ss. 86(2), 86(4)
20. National Parks and Wildlife Amendment Act 2010, Sch 1 ss. 87A, 87B
21. Heritage Act 1977, Part 3A.
22. Most environmental planning instruments are available online at www.legislation.nsw.gov.au under ‘Browse In Force'.
23. Direction 9 under the powers conferred by s 117 of the Environmental Planning and Assessment Act 1979.
24. The exhibition period is usually 28 days.
25. National Parks and Wildlife Act 1974, s. 86.
26. National Parks and Wildlife Act 1974, s. 90.
27. National Parks and Wildlife Act 1974, s.83
28. National Parks and Wildlife Act 1974, s. 87.
29. National Parks and Wildlife Act 1974, s. 91.
30. National Parks and Wildlife Act 1974, s. 87.
31. National Parks and Wildlife Act 1974, s. 90.
32. For more information click here.

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