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Last updated: 16 October 2008
8.1 Aboriginal Cultural Heritage
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. This definition does not always fit with the way Aboriginal people themselves think of and define cultural heritage.
‘Aboriginal objects' are deposits, objects or material evidence relating to Aboriginal habitation of New South Wales1 and include Aboriginal remains.
‘Aboriginal place' is a place which is or was of special significance for Aboriginal people, and which is also recognised as ‘significant' by the Minister.2 In other words the Minister needs to be convinced that a place should be declared an Aboriginal place.
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 listed and briefly outlined below.
2.1 National Protection
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.3 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.4
2.1.2 Protection as National Heritage
The Federal Government also protects cultural heritage areas which are on the National Heritage List.5 You can nominate a place for inclusion in the National Heritage List if it satisfies at least one of the National Heritage criteria.6
Once a place is nominated, the Heritage Council will decide whether the place meets the National Heritage 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.
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 same process is followed to get something of cultural or natural significance listed as is followed for the National Heritage List.7
2.1.4 Protection under the National Estate Register
The Register is kept by the Australian Heritage Council8 and identifies places which have special value for present and future generations. There are more than 13,000 places listed on the Register, with 900 having Indigenous significance.9
2.1.5 Protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
The Act protects from damage areas and objects in Australia or Australian waters that are significant to Indigenous people in accordance with Aboriginal or Torres Strait Islander tradition.10 An Aboriginal or Torres Strait Islander person, or a person on their behalf, can apply to the Minister for Indigenous Affairs verbally or in writing for protection for a specified area or object.11
The Minister can 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.12
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.13
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.
2.2 State Protection
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 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.14
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 preserve, protect and prevent damage to Aboriginal objects or Aboriginal places on that land.15
Stop work orders
The Director-General of the 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.16
Interim Protection Orders
The Minister for the Environment can make an interim protection order to preserve land with Aboriginal places or objects on it.17 Interim protection orders are valid for the period that is specified in the order but no longer than 2 years.18
Conservation agreements
The Minister for Environment may make conservation agreements with landowners to protect areas which contain objects or Aboriginal places of special significance.19 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 Act that relate to cultural heritage as penalties for damage and destruction of items or places of heritage value.20 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.21
2.2.2 State Heritage Register
Natural and cultural heritage can be protected via the State Heritage Register.22 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 cultural heritage listed on the State Heritage Register, you should lobby the Heritage Council or the Minister.
Things that are listed on the State Heritage Register are protected and cannot be demolished, redeveloped or otherwise altered without an approval from the Heritage Council.
2.3 State and Local Government Protection
2.3.1 Protection under the Environmental Planning and Assessment Act 1979
Under NSW planning laws, all development and planning happens in accordance with state, regional and local environment plans (known as environmental planning instruments23 ) that set out what types of development can happen where and what areas are protected.
Local environment plans (LEPs) must now conform to the new standard LEP template designed by the State Government. This requires Councils to redraft LEPs that do not conform to the template; in doing this Council must provide for the conservation and management of Aboriginal heritage.24 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.25
The Minister for Planning decides whether to approve an 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 Council's have Heritage Officers and Aboriginal Liaison Officers who can give you information and advice on cultural heritage matters.
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. Anyone can destroy cultural heritage if they have approval from the relevant government department. Aboriginal cultural heritage objects are deemed the property of the Crown.26
For example, the Director-General of the National Parks and Wildlife Service can give permission for the destruction of cultural heritage.27
The Director-General can issue permits to damage, destroy and remove objects and places of cultural heritage value. Such permits make it legal to do any of the things that are offences under the Act, 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 - Who are the people seeking to destroy cultural heritage? Was the consent issued appropriately? Who was consulted?
If you have trouble accessing information, Freedom of Information (FOI) laws may assist you. It is always better to ask for information first and then make a FOI application as a last resort. The EDO can assist you with making an FOI application.
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
intentionally damage an Aboriginal object or Aboriginal place.29
Am I entitled to be consulted about decisions to destroy cultural heritage?
DECCW has released guidelines30 that set out when and how Aboriginal people are to be consulted about the potential destruction of cultural heritage.
Any person who is aware of the location of an Aboriginal object must notify DECCW.31 That person can then apply to DECCW for a permit to disturb, remove, excavate or damage the object32 or a consent to destroy the object.33 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.34 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.
National Parks and Wildlife Act 1974, s 5
National Parks and Wildlife Act 1974, s 84
For a list of World Heritage places in Australia go to http://www.environment.gov.au/heritage/worldheritage/
Environment Protection and Biodiversity Conservation Act 1999, s 12
Under the Environment Protection and Biodiversity Conservation Act 1999,s 15B
The criteria for the National Heritage List can be found at http://whc.unesco.org/en/criteria/ and you can download the nomination form from http://www.environment.gov.au/heritage/national/request.html
You can access the criteria from http://www.environment.gov.au/heritage/commonwealth/criteria.html#list
http://www.ahc.gov.au
Contact the Australian Heritage Council
Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s 4
Aboriginal and Torres Strait Islander Heritage Protection Act 1984, s 10
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.
Native Title Act 1993,s 25.
National Parks and Wildlife Act 1974, s 28.
National Parks and Wildlife Act 1974,ss 30K and 62.
National Parks and Wildlife Act 1974,s 91AA.
National Parks and Wildlife Act 1974, s 91A.
National Parks and Wildlife Act 1974, s 91D (1).
National Parks and Wildlife Act 1974, s 69C(1)(d).
National Parks and Wildlife Act 1974, s 86.
See Garrett v Williams (2007) 151 LGERA 92 & Plath v O'Neill [2007] NSWLEC 553
Heritage Act 1977,Part 3A.
Most environmental planning instruments- Local Environmental Plans, Regional Environmental Plans and State Environmental Planning Policies, are available online at www.legislation.nsw.gov.au under ‘Browse In Force'.
Direction 9 under the powers conferred by s 117 of the Environmental Planning and Assessment Act 1979.You can view the direction at http://www.planning.nsw.gov.au/planning_reforms/p/s117s_30sept05.pdf
The exhibition period is usually 28 days.
S.83
National Parks and Wildlife Act 1974, s 90.
National Parks and Wildlife Act 1974, s 87.
National Parks and Wildlife Act 1974,s 86.
The Guidelines can be found online at http://www.nationalparks.nsw.gov.au/PDFs/interim_consulation_guidelines.pdf
ational Parks and Wildlife Act 1974,s 91.
ational Parks and Wildlife Act 1974,s 87.
National Parks and Wildlife Act 1974,s 90.
For more information see http://www3.environment.nsw.gov.au/npws.nsf/content/aboriginal+heritage+information+management+system
