2.3 - Indigenous Australians seek, and are entitled to expect, stronger national-level protection of their cultural heritage
2.3.1 - Current laws that protect Indigenous cultural heritage in Australia are behind community expectations
Places of natural and cultural value that are important to the world or Australia can be recognised and protected by nominating them for World Heritage listing, or listing them as National Heritage or Commonwealth Heritage under the EPBC Act.
These include places that hold particular cultural importance for Indigenous Australians. For example, Kakadu National Park, Tasmanian Wilderness, Uluṟu-Kata Tjuṯa National Park, Willandra Lakes Region, Budj Bim Cultural Landscape, Brewarrina Aboriginal Fish Traps (Baiame’s Ngunnhu), and the Myall Creek Massacre and Memorial Site are all places protected under the EPBC Act for their natural or Indigenous cultural values.
At the national level, Indigenous cultural heritage is protected under numerous other Commonwealth laws, including the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act). The ATSIHP Act can be used by Aboriginal and Torres Strait Islander peoples to ask the Environment Minister to protect an area or object where it is under threat of injury or desecration and where State or Territory law does not provide for effective protection.
At the Commonwealth level, cultural heritage is also protected under the Copyright Act 1968 (for some intangible heritage) and the Moveable Cultural Heritage Act 1986 (for tangible, moveable heritage).
The States and Territories also play a role in Indigenous heritage protection. Submissions, including from the Victorian Aboriginal Heritage Council, have highlighted the potential for duplication. Others, such as the Tasmanian Aboriginal Centre (2020), noted the importance of the Commonwealth Government playing a role where State and Territory-based arrangements, in their view, provide insufficient protections.
The current laws that protect Indigenous cultural heritage in Australia are well behind community expectations. They do not deliver the level of protections that Indigenous Australians and the community expect, and they do not work with the way developments are assessed, approved and conducted. During the course of the Review, the destruction of Indigenous cultural heritage in rock shelters at Juukan Gorge in Western Australia was approved under State laws. Commonwealth intervention under the ATSIHP Act did not occur. The outcry over this event from Traditional Owners and Indigenous leaders, from shareholders and from the Australian community has garnered international attention. Other large companies have subsequently taken stock of their approvals, in response to shareholder and community pressure.
The ATSIHP Act does not align with the development assessment and approval processes of the EPBC Act. Cultural heritage matters are not required to be broadly or specifically considered by the Commonwealth Government in conjunction with assessment and approval processes under Parts 7 to 9 of the EPBC Act. Interventions through the ATSIHP Act occur after the development assessment and approval process has been completed.
Contributions to the Review have highlighted the importance of considering cultural heritage issues early in a development assessment process, rather than Traditional Owners relying on a last-minute ATSIHP Act intervention. The misalignment of the operation of the EPBC Act and the ATSIHP Act promotes uncertainty for Traditional Owners, the community and for proponents.
The ability to protect some aspects of Indigenous cultural heritage, such as Songlines, is limited by the settings of the EPBC Act. This is because serial listings (groups of sites that collectively tell a story that is of outstanding heritage value) for national heritage cannot be made (Box 15, Chapter 3).
In their submissions, stakeholders raised their concerns that the Commonwealth Government does not provide sufficient protection of Indigenous heritage and that fundamental reform is both required and long overdue. For example, the NSW Aboriginal Land Council (2020) submission highlighted:
… significant improvements are needed to protect and promote Aboriginal cultural heritage. Successive ‘State of the Environment’ reports have highlighted the widespread destruction of Aboriginal cultural heritage and have observed that ‘approved destruction’ and ‘economic imperatives’ are key risks. Fundamentally, reforms are needed to ensure Aboriginal people are empowered to protect and promote Aboriginal heritage, make decisions, and are resourced to lead this work.
These submissions identify opportunities for the EPBC Act to play a more constructive role in Indigenous cultural heritage protection at the national level.
2.3.2 - National-level cultural heritage protections need comprehensive review
The current laws that protect Indigenous cultural heritage at the national level need comprehensive review. This review should consider both tangible and intangible cultural heritage (Box 11).
Box 11 - Intangible cultural heritage
The concept of intangible cultural heritage relates to knowledge of or expressions of traditions. Intangible Indigenous cultural heritage is defined in various Commonwealth and State and Territory laws in Australia.
Victorian Aboriginal Heritage Act 2006
‘Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition … and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.’
Northern Territory Aboriginal Scared Sites Act 1989
‘Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.
A sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.’
ATSIHP Act 1984
‘…the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.’
For more information, see the Intangible heritage further reading at the end of the report.
Contributors to this Review have emphasised the intrinsic link between Indigenous Australians, land and water and their culture and wellbeing.
For Indigenous Australians, Country owns people and every aspect of life is connected to it, it is much more than just a place. Inherent to Country are vistas, landforms, plants, animals, waterways, and humans. Country is loved, needed and cared for and Country loves, needs and cares for people. Country is family, culture and identity, Country is self. (IWG 2020)
These contributors have suggested that the EPBC Act could have a more expansive role to protect culturally important species and important cultural places that have intangible, ecological, environmental, and physical cultural assets.
Comprehensive review of national-level Indigenous cultural heritage protection legislation is needed. Reform should consider processes currently underway that are looking to improve Indigenous cultural heritage protection outcomes.
The Environment Minister has committed to a national engagement and co-design process for modernising the protection of Indigenous cultural heritage in Australia. This process commenced in mid-September 2020 with an Indigenous Heritage Roundtable meeting of State and Territory Indigenous and environment Ministers. The meeting was jointly chaired by Minister for the Environment, the Hon. Sussan Ley MP, and Minister for Indigenous Australians, the Hon. Ken Wyatt AM MP. Little detail has been provided about how this process will be progressed.
Since 2018 the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) has been working to develop Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia (Box 12). The vision was developed to ‘present a united voice for Indigenous Australians’ heritage aspirations for the next decade. This work has been done in partnership with Indigenous heritage leaders.
To support this vision, HCOANZ has developed the Best Practice Standards in Indigenous Cultural Heritage Management and Legislation. This is presented as an appendix to the vision. It sets out the fundamental principles required to ensure that Indigenous cultural heritage legislation and policy is of the highest standard in Australia.
The vision and standards framework provide a basis on which to comprehensively review how Indigenous heritage is protected by national laws in Australia and how national laws should interact with state-based arrangements.
Box 12 - Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia
Dhawura Ngilan – Remembering Country
Dhawura Ngilan provides key areas of focus to guide actions of the Commonwealth Government and State and Territory governments to better protect and recognise Aboriginal and Torres Strait Islander cultural heritage over the next decade. The name Dhawura Ngilan was given to the vision with the permission of the Winanggaay Ngunnawal Language Group to reflect a deep emotional and spiritual connection to the environment.
There are 4 high-level vision statements:
- Aboriginal and Torres Strait Islander peoples are the custodians of their heritage. It is protected and celebrated for its intrinsic worth, cultural benefits and the wellbeing of current and future generations of Australians.
- Aboriginal and Torres Strait Islander heritage is acknowledged and valued as central to Australia’s national heritage.
- Aboriginal and Torres Strait Islander Heritage is managed efficiently, effectively and consistently across jurisdictions according to community ownership.
- Aboriginal and Torres Strait Islander heritage is recognised for its global significance.
These statements should underpin all Indigenous cultural heritage policy development and legislative amendments in the future.
Best Practice Standards in Indigenous Cultural Heritage Management and Legislation
Appendix C of the vision sets out the Best Practice Standards for Indigenous Cultural Heritage Legislation developed by the HCOANZ Indigenous Chairs.
The foundational principle of the HCOANZ Standards is that ‘Australia’s Indigenous Peoples are entitled to expect that Indigenous Cultural Heritage legislation will uphold the international legal norms contained in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)’. Additional best-practice legislative standards discussed further in the HCOANZ Standards include:
- basic structures
- incorporation of principles of self-determination
- resourcing and participation
- resourcing compliance and enforcement
- Indigenous ancestral remains
- secret and sacred objects
- intangible Indigenous cultural heritage.
Combined, the application of these Standards provide a consistent approach to best-practice Indigenous cultural heritage protection, promotion and management across all governments.
For more information, see the Guidelines for Indigenous engagement further reading at the end of the report.
The goal of a national review is to ensure that national laws provide best-practice protection of cultural heritage – tangible and intangible – and work in concert with protections afforded under State and Territory laws.
Given the intrinsic links between the environment, culture and wellbeing, and the objects of the EPBC Act, the Act could play a significant role in delivering more effective protections. This includes how Indigenous heritage is protected under the Act (for example, protection of places or culturally important but common species) and how protections are given effect (for example, in regional planning processes, protected area management or development assessment and approval processes).
However, the EPBC Act may not be best placed to protect all Indigenous cultural heritage (such as language and crafts). Other laws or processes will need to work in concert with national environmental law to provide comprehensive, national-level protections.
The Commonwealth Government should immediately initiate a comprehensive review of national-level cultural heritage protections, drawing on best practice frameworks for cultural heritage laws.