State of Indigenous cultural heritage
2011
DECEMBER 2011
PRODUCED BY Eloise Schnierer, Sylvie Ellsmore and Stephan Schnierer,
Watego Legal and Consulting Pty Ltd
FOR the Department of Sustainability, Environment, Water, Population and Communities
ON BEHALF OF the State of the Environment 2011 Committee
Citation
Schnierer E, Ellsmore S and Schnierer S. State of Indigenous cultural heritage 2011. Report
prepared for the Australian Government Department of Sustainability, Environment, Water,
Population and Communities on behalf of the State of the Environment 2011 Committee.
Canberra: DSEWPaC, 2011.
© Commonwealth of Australia 2011.
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no
part may be reproduced by any process without prior written permission from the
Commonwealth. Requests and enquiries concerning reproduction and rights should be
addressed to Department of Sustainability, Environment, Water, Populations and
Communities, Public Affairs, GPO Box 787 Canberra ACT 2601 or email
public.affairs@environment.gov.au
Disclaimer
The views and opinions expressed in this publication are those of the authors and do not
necessarily reflect those of the Australian Government or the Minister for Sustainability,
Environment, Water, Population and Communities.
While reasonable efforts have been made to ensure that the contents of this publication are
factually correct, the Commonwealth does not accept responsibility for the accuracy or
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publication.
Cover image
Rock art near Truscott Airfield, WA
Photo by Dragi Markovic & DSEWPaC
Australia ■ State of the Environment 2011 Supplementary information
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Preface
This report was commissioned by the Department of Sustainability, Environment, Water,
Population and Communities to help inform the Australia State of the Environment (SoE)
2011 report. As part of ensuring its scientific credibility, this report has been independently
peer reviewed.
The Minister for Environment is required, under the Environment Protection and Biodiversity
Conservation Act 1999, to table a report in Parliament every five years on the State of the
Environment.
The Australia State of the Environment (SoE) 2011 report is a substantive, hardcopy report
compiled by an independent committee appointed by the Minister for Environment. The
report is an assessment of the current condition of the Australian environment, the pressures
on it and the drivers of those pressures. It details management initiatives in place to address
environmental concerns and the effectiveness of those initiatives.
The main purpose of SoE 2011 is to provide relevant and useful information on
environmental issues to the public and decision-makers, in order to raise awareness and
support more informed environmental management decisions that lead to more sustainable
use and effective conservation of environmental assets.
The 2011 SoE report, commissioned technical reports and other supplementary products are
available online at www.environment.gov.au/soe.
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State of Indigenous cultural heritage 2011
About this report
Australia’s Indigenous peoples - Aboriginal and Torres Strait Islanders – have owned and
managed the lands and waters on which Australia was established for thousands of years.
Rich and diverse Indigenous cultures were developed, practiced and nurtured across
Australia and continue today, often in new and evolving forms which build on and renew the
knowledge and legacies of past generations.
In Australia, there is an increasing recognition of the importance of Australia’s Indigenous
heritage, not only for Indigenous peoples but for all Australians. This recognition is reflected
in efforts to better record and report on the condition and integrity of Indigenous heritage.
The Australian State of the Environment Report is a national report of the condition of
Australia’s environment and heritage. It is prepared to meet the Commonwealth’s
requirements under the key national environmental legislation in Australia – the
Environmental Protection and Biodiversity Conservation Act 1999.
This thematic report is entitled the State of Indigenous Cultural Heritage Report 2011. It
provides data, information and analysis to inform the Indigenous heritage findings of the
2011 SoE Report.
This report focuses on two important indicators of the state of Indigenous heritage which
have been identified as priorities for reporting by the Australian State of the Environment
Committee: the physical condition and integrity of Indigenous heritage places (SoE Indicator
NCH-07), and the use of Indigenous languages (SoE Indicator NCH-24).
This report also provides data and information on other important aspects of Indigenous
heritage including access, control and use of lands and waters, Indigenous languages,
traditional knowledge and cultural practices.
An overview is provided of the current laws for the regulation of Indigenous heritage and the
historical context of Indigenous heritage management in Australia and internationally. Case
studies are included to highlight the diversity of Australia's Indigenous heritage and different
trends and pressures impacting on that heritage. Analysis and recommendations are made
in relation to Indigenous peoples’ aspirations and rights in relation to Indigenous heritage,
and improved future reporting on the state of Indigenous heritage.
This report is not a complete picture of all aspects of Indigenous heritage. However, it is
hoped that its findings and conclusions contribute towards building a more informed picture
of the state of Australia's Indigenous heritage estate, key trends and pressures impacting on
the management of Indigenous heritage over the last five years and responses by
government decision makers and others.
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State of Indigenous cultural heritage 2011
Acknowledgements:
For their valuable contribution to this project the authors would like to acknowledge and
thank Alison McLeod, Dylan Lino, Daniel Thelfall, Lucille Schnierer, Ben Spies-Butcher,
Dominic Davis and Lynette Sebo. We would also like to acknowledge and thank all
Aboriginal and Torres Strait Islander people who were interviewed for this project,
contributing their valuable time and insights.
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State of Indigenous cultural heritage 2011
Terminology
‘Culture and heritage’, ‘cultural heritage’, ‘culture’ and ‘heritage’
This report uses the terms of 'culture and heritage', 'cultural heritage', 'culture' and 'heritage'
somewhat interchangeably, to reflect the interconnected definition of these concepts.
‘Indigenous’
This report also uses the term ‘Indigenous’ to refer to ‘Aboriginal people’, ‘Torres Strait
Islanders’ and ‘Aboriginal and Torres Strait Islanders’, as this is consistent with the approach
used in the previous and current Australia State of the Environment reports by the
Commonwealth Department of Sustainability, Environment, Water, Population and
Communities.
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State of Indigenous cultural heritage 2011
Contents
Executive Summary ................................................................................................. 6
1. Introduction ...................................................................................................... 14
1.1
1.2
1.3
1.4
2.
Indigenous concepts of cultural heritage ................................................................................ 14
Methodology for this report ..................................................................................................... 15
State of the Environment Reporting framework...................................................................... 16
Data and information used in this report ................................................................................. 18
Management of Indigenous heritage in Australia ........................................ 20
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
3.
Introduction .............................................................................................................................. 20
Key trends ................................................................................................................................ 21
Background to Indigenous heritage management in Australia ............................................... 23
Current regulatory framework for protection and management of Indigenous heritage ......... 26
Changes to Indigenous heritage legislation in the reporting period ........................................ 27
Indigenous ownership and control of heritage ........................................................................ 28
Definitions of Indigenous heritage .......................................................................................... 29
Exemptions for ‘low impact’ activities ...................................................................................... 30
Heritage planning ..................................................................................................................... 30
Legislation for access, use and management of cultural environmental resources ............... 30
Recent international developments ........................................................................................ 31
Selected national developments ............................................................................................. 35
Comments and recommendations .......................................................................................... 35
Moveable and immoveable cultural property ............................................... 37
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
4.
Introduction ............................................................................................................................. 37
Condition and key trends ........................................................................................................ 37
Reporting on moveable and immoveable heritage ................................................................. 39
World Heritage List ................................................................................................................. 40
National and Commonwealth Heritage Lists .......................................................................... 42
Register of the National Estate ............................................................................................... 45
Commonwealth emergency protection for Indigenous heritage ............................................. 46
State and territory Indigenous heritage registers.................................................................... 51
Authorised harm and destruction of Indigenous heritage ....................................................... 56
Unauthorised destruction of Indigenous heritage ................................................................... 60
Repatriation Programs ............................................................................................................ 61
Other programs and funding ................................................................................................... 62
Comments and recommendations .......................................................................................... 63
Land, water and biodiversity ......................................................................... 65
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
Introduction .............................................................................................................................. 65
Condition and key trends ......................................................................................................... 66
Assessing and reporting on the state of land, water and biodiversity ..................................... 70
Indigenous-owned and Indigenous-controlled land ................................................................. 71
Indigenous people living on Country ....................................................................................... 71
Joint management and co-management ................................................................................. 72
Native Title ............................................................................................................................... 73
Indigenous Protected Areas program ...................................................................................... 76
Comments and recommendations ........................................................................................... 80
5. Intangible cultural heritage (languages, cultural practices and traditional
knowledge) ............................................................................................................. 81
5.1
Introduction .............................................................................................................................. 81
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State of Indigenous cultural heritage 2011
5.2 Condition and key trends ......................................................................................................... 84
5.3 Assessing and reporting on Indigenous languages ................................................................. 88
5.4 Assessing and reporting on intangible cultural heritage .......................................................... 91
5.5 Intergenerational transmission of Indigenous languages ........................................................ 94
5.6 Absolute number of speakers of an Indigenous language ...................................................... 97
5.7 Official attitudes and policies towards Indigenous languages ............................................... 101
5.8 Indigenous language programs ............................................................................................. 103
5.9 Indigenous community members’ attitudes towards their own languages ............................ 110
5.10 Overall proportion of Indigenous people whose main language spoken at home is an
Indigenous language ....................................................................................................................... 110
5.11 Overall proportion of Indigenous people who speak an Indigenous language ..................... 115
5.12 Programs and funding related to traditional knowledge and cultural practice ...................... 116
5.13 Knowledge of Indigenous culture and heritage .................................................................... 118
5.14 Comments and recommendations ........................................................................................ 119
6. Pressures on Indigenous heritage ............................................................... 121
6.1
6.2
6.3
6.4
Introduction ............................................................................................................................ 121
Direct threats ......................................................................................................................... 121
Underlying pressures ............................................................................................................. 125
Pressures affecting Indigenous intangible cultural heritage .................................................. 127
7. Conclusions ................................................................................................... 129
Figures and Tables............................................................................................... 130
Legislation and Cases ......................................................................................... 132
References ............................................................................................................ 133
Appendices ........................................................................................................... 143
Appendix 1: List of current Australian Indigenous heritage legislation ........................................... 144
Appendix 2: Provisions for protection of Indigenous heritage under Commonwealth, state and
territory heritage legislation ............................................................................................................. 146
Appendix 3: Key legislative provisions for Indigenous access, use and management of natural
resources, by jurisdiction ................................................................................................................. 154
Appendix 4: Overview of reviews and amendments to Indigenous heritage legislation, by
jurisdiction ....................................................................................................................................... 165
Appendix 5: List of stakeholders interviewed .................................................................................. 180
Appendix 6: Additional data and correction from Commonwealth, state and territory government
agencies .......................................................................................................................................... 181
Attachment A: Case Studies ............................................................................... 183
Introduction...................................................................................................................................... 183
Tjilbruke Dreaming Trails, South Australia ...................................................................................... 185
Preminghana Indigenous Protected Area, Tasmania ..................................................................... 190
Magamarra, Northern Territory ....................................................................................................... 197
Biamanga, South Coast, New South Wales ................................................................................... 202
Eel Traps, Lake Condah, Victoria ................................................................................................... 208
Lake Eyre, South Australia.............................................................................................................. 215
Wet Tropics World Heritage Area, Queensland .............................................................................. 220
Kimberley region, Western Australia ............................................................................................... 224
References (Attachment A) ............................................................................................................. 231
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State of Indigenous cultural heritage 2011
Executive Summary
Introduction
Australia’s Indigenous peoples - Aboriginal and Torres Strait Islanders – have owned and
managed the lands and waters on which Australia was established for thousands of years.
Rich and diverse Indigenous cultures were developed, practiced and nurtured across
Australia and continue today, often in new and evolving forms that build on and renew the
knowledge and legacies of past generations.
In Australia, there is an increasing recognition of the importance of Australia’s Indigenous
heritage, not only for Indigenous peoples but for all Australians. This recognition is reflected
in efforts to better record and report on the condition and integrity of Indigenous heritage,
through national reports such as the State of the Environment Report.
The Australian State of the Environment Report (SoE) is a national report of the condition of
Australia’s environment and heritage, prepared by the Commonwealth Government every
five years. It is prepared to meet the Commonwealth’s requirements under the key national
environmental legislation in Australia – the Environmental Protection and Biodiversity
Conservation Act 1999.
This thematic report is entitled the State of Indigenous Cultural Heritage 2011. It provides
data, information and analysis to inform the Indigenous heritage content of the 2011 SoE
report.
The report focuses on two important indicators of the state of Indigenous heritage which
have been identified as priorities for reporting by the Australian SoE Committee: the physical
condition and integrity of Indigenous heritage places (SoE Indicator NCH-07), and the use of
Indigenous languages (SoE Indicator NCH-24).
This report also provides data and information on other important aspects of Indigenous
heritage including access, control and use of lands and waters, cultural practices and
Indigenous knowledge. It is not a complete picture of all aspects of Indigenous heritage, but
aims to help improve the evidence base about the status of some important aspects of
Indigenous heritage in Australia today.
As outlined in the Key Findings section, these various aspects of Indigenous heritage are
considered against five key Indigenous Cultural Heritage themes – Management of
Indigenous Heritage; Moveable and Immoveable Cultural Property; Land, Water and
Biodiversity; Intangible Cultural Heritage (including languages, traditional knowledge and
cultural practices); and Pressures on the condition and integrity of Indigenous heritage.
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State of Indigenous cultural heritage 2011
Key Findings
Overall, the reporting period has seen a large number of positive developments but also a
number of trends which significantly undermine the protection of Indigenous heritage.
Management of Indigenous heritage in Australia
The trend towards an increasing interest in Indigenous heritage in Australia, which was
reported in past State of the Environment Reports, has continued in the reporting period.
There is a growing recognition in policy of the relationship between natural, cultural and
historical heritage, how these are integrated under Indigenous definitions of heritage, and
the importance of Indigenous control, access and use of heritage sites and land, water and
natural resources for cultural reasons.
The appreciation of Indigenous heritage amongst non-Indigenous people continues to grow,
and there is strong goodwill amongst policy makers to improve processes for protecting and
managing Indigenous heritage. At the same time, however, there remains a disconnect
between Indigenous people’s views about Indigenous heritage, and how it should be
supported and managed, and decision makers within government.
The recognition of the role of Indigenous people in the management of Indigenous heritage
has expanded. However, in the main the involvement of Indigenous people in physical and
natural heritage management remains primarily in the form of consultation and advice, rather
than formal decision-making (with some exceptions).
There is also an increasing recognition in some jurisdictions of Indigenous peoples’ rights to
use, access and manage lands, waters and natural resources for cultural purposes.
New and expanding international standards for Indigenous heritage have been developed, in
relation to heritage, biodiversity and human rights. However, these have not tended to flow
through to the national or state level.
Moveable and immoveable cultural property
Listing of Indigenous heritage places on national, state and territory heritage lists has
continued to grow, and in some jurisdictions more strongly than other forms of heritage
listings.
The reporting period saw an increase in cultural heritage assessments. In most jurisdictions
the great majority, and in some cases all, new listings on state and territory Indigenous
registers were generated by Indigenous heritage assessments undertaken as part of
development approvals in order to inform decision makers responsible for protecting,
managing and/or approving impacts on Indigenous heritage.
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State of Indigenous cultural heritage 2011
Conflicts about the destruction of Indigenous heritage by approved industry activities remain
common, as are debates about whether the level of support available for Indigenous culture
and heritage programs, including language programs, is adequate.
In a number of jurisdictions there is a high rate of issue permits authorising harm and
destruction of Aboriginal heritage as a result of development approvals, permits and
consents. Only a small number of prosecutions for unauthorised destruction of Indigenous
heritage were reported.
Over the reporting period there has been a significant increase in the number of applications
to the Commonwealth Minister for the Environment to provide emergency protection of
Indigenous heritage places and objects under threat, using powers available under the
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (or ATSIHP Act). The rate
of approval of applications by Indigenous people and organisations to the Minister remains
very low.
Land, water and biodiversity
The proportion of Indigenous-owned and Indigenous-controlled lands increased in the
reporting period, with significant increases in the number of Indigenous Protected Areas
(IPA), areas of land under Native Title agreements, and an increase in other forms of
Indigenous land holdings.
Indigenous people are playing an increasingly important role in sustainably managing
Australia’s natural resources, including managing an increasing percentage of Australia’s
reserves through Indigenous Protected Areas established on Indigenous-owned lands.
There is also an increasing trend to create joint management arrangements with Indigenous
people over protected areas, especially national parks.
There have been increasing levels of Australian government funding support for Indigenousowned lands and Indigenous involvement in managing Country in the reporting period.
The increasing financial support for Indigenous land holders in the reporting period needs to
be considered against the limitations on future land use imposed by conservation
agreements on Indigenous people.
While such conservation arrangements can meet both Indigenous people’s commitments to
caring for Country and governments’ commitments to conservation, it is important that a
disproportionate burden is not placed on Indigenous people to help Australia meet its
national and international environmental obligations.
This is particularly the case, as Indigenous people remain the most economically
disadvantaged group in Australia. Disadvantage is strongest in remote and very remote
Australia, which is also where Indigenous people have most land holdings and are
responsible for the largest protected areas. In such remote areas, Commonwealth programs
can be the primary or sole source of employment for Indigenous communities.
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State of Indigenous cultural heritage 2011
For these numerous reasons, it is important that government funding reflects the contribution
that Indigenous people make to the preservation of Australia’s natural and cultural heritage
estate through their land holdings, and that funding adequately supports the activities being
undertaken by the Indigenous community, and builds capacity for future Indigenous
conservation land management.
The loss of the Community Development Employment Program (CDEP) in the reporting
period is noted as a potential risk to Indigenous-controlled protected areas. A number of
Indigenous communities relied on CDEP to support Working on Country programs and in the
absence of adequate replacement programs to provide funding for essential equipment,
vehicles and office support, the loss of CDEP is a major concern.
Past State of the Environment Reports have reported on Indigenous access to land, but not
water or natural resources to a significant extent. During the reporting period, water became
the focus of increasing attention by both Indigenous advocates and policy makers.
The proportion of Indigenous-controlled waters also increased, with two significant judicial
decisions recognising Indigenous water rights in the Northern Territory and the Torres Strait.
However, Indigenous rights in water generally continue to be not adequately recognised by
Australian law and policy, and governments across Australia are only in the early stages of
formally recognising Indigenous relationships with water for spiritual, cultural and economic
purposes.
Major developments in the period include the National Water Commission’s Indigenous
Water Policy Group and the recently established First Peoples' Water Engagement Council.
Indigenous traditional knowledge for the management of Australia’s environment is a
growing area of research, with a number of partnership programs between Indigenous
groups and governments in the reporting period.
The connection between access to Country and Indigenous health is now generally
accepted by Australian policy makers, and is reflected in a wide range of new policies
developed in the reporting period.
Across jurisdictions there was a trend towards agreements recognising access and use of
land, water and cultural resources over defined areas, by Traditional Owners. This includes
the Commonwealth government’s Sea Country Planning Program. It is also noted that such
agreements are often linked to or based on Native Title.
There is also a trend towards increased positive statutory recognition of Indigenous rights to
access and use traditional resources. This replaces past approaches where Indigenous
people’s rights tended to be limited to the ability to gain an exemption from licensing
requirements (see for example, fishing), or defences against prosecution on the basis of
Aboriginality and/or engaging in traditional cultural practices.
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State of Indigenous cultural heritage 2011
Intangible cultural heritage (including
knowledge and cultural practices)
languages,
traditional
Indigenous languages remain highly endangered, though there have been some positive
improvements in numbers of speakers and expanding numbers of language revitalisation
programs.
The endangered status of Indigenous Australian languages is illustrated by the decline in the
number of Indigenous people who speak an Indigenous language at home. At the 2008
National Aboriginal and Torres Strait Islander Social Survey, 11.5% of Indigenous people
aged 15 years and over spoke an indigenous language at home, compared to 12% in 2002.
The majority of the strong Indigenous languages are spoken in remote areas of Western
Australia, the Northern Territory and Queensland. In these areas the focus of languages
policy and programs is on maintenance and preservation.
In other parts of the country, particularly in the southeast and along the southeast coast,
most Indigenous languages are no longer fully or fluently spoken. The focus in these regions
is on language revitalisation, a process that has been the subject of increasing interest and
support from the Indigenous community during the reporting period.
More than 80 Indigenous languages are being taught in Australian primary and secondary
schools and are concentrated in public schools in the Northern Territory, New South Wales,
Western Australia and South Australia. The majority of these are language reclamation
programs.
The Australian Government acted to address language loss during the reporting period by
launching a new national Indigenous languages policy, targeting maintenance of critically
endangered languages and promoting reclamation of unspoken Indigenous languages.
Crucially, however, the new national policy was not accompanied by a boost to the
Maintenance of Indigenous Languages Program – the funding program that underpins the
national Indigenous language policy.
At the same time as the Australian government was launching its new Indigenous languages
policy, the Northern Territory Government withdrew funding for bi-lingual education from the
remaining bi-lingual schools, effectively ending bi-lingual education in the Northern Territory.
Increasing community interest in language, traditional knowledge and cultural programs was
reflected in the growing demand for Commonwealth government funding under number of
Indigenous language and cultural programs, which outpaced the resources allocated to
these programs.
There is greater public awareness of the diversity of Aboriginal cultures and languages than
there was 30 or 40 years ago. The launch of National Indigenous Television in 2007 has
provided a window into Aboriginal ways of life that is unprecedented in its reach.
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State of Indigenous cultural heritage 2011
During the reporting period, research also revealed that the majority of Indigenous and nonIndigenous Australians felt that the relationships between Indigenous people and other
Australians were important, but that levels of trust are low. The majority of non-Indigenous
respondents had a low level of understanding about Indigenous peoples and cultures,
although two thirds of general respondents thought Indigenous culture was significant to
Australian identity.
Pressures
The high level of approved destruction of significant Aboriginal heritage remains a major
threat to Indigenous heritage. While nearly all jurisdictions introduced stronger requirements
to assess Indigenous heritage and consult with Indigenous people about development, there
is little evidence that this has led to improved protection for Indigenous heritage sites.
The past five years have been remarkable for the number of high-profile conflicts between
Indigenous people, government decision-makers and industries (including mining, forestry
and urban development) about developments that destroy significant and sacred sites. A
number of recent legal challenges by Indigenous people have highlighted the lack of legal
avenues or formal rights for Indigenous people seeking to enforce protection of their
heritage.
There has been an increase in recording and listings of Indigenous sites but there is little to
no accounting or public reporting of the cumulative impact of the destruction of Indigenous
heritage. While in principle support for cultural landscape planning exists, this has not been
resourced or actively implemented by policy makers.
The majority of cultural heritage assessments are undertaken by commercial industries
seeking to undertake activities which may impact on Indigenous heritage. Economic
considerations are prioritised over heritage protection, in the absence any rigorous
assessment of how much of the Indigenous heritage estate has already been destroyed
through past activities in the region.
Recommendations
In terms of the State of the Environment Report, there are significant limitations on the data
available to assess the state of Indigenous heritage. Commitments to specific data collection
in some areas are needed to be able to adequately assess key trends.
A revision of the framework for determining the ‘condition’ of Indigenous heritage is needed,
driven by Indigenous stakeholders, to better reflect Indigenous heritage, particularly in
relation to the role of cultural practices and the relationship between Indigenous ‘heritage’,
‘culture’, ‘traditional knowledge’ and Australia’s lands, waters and natural resources.
It is strongly recommended that the current reporting framework for the State of the
Environment be reviewed, including a thorough review of legislation for the management of
land, water, sea and biodiversity at the Commonwealth and state level, with a view to
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State of Indigenous cultural heritage 2011
updating the framework for assessing Indigenous ‘heritage’ to better incorporate cultural
practices.
There is a wide range of different agencies responsible for Indigenous heritage legislation
across jurisdictions, yet there are no national requirements for consistency in the
management of Indigenous heritage in Australia. Previous attempts to develop detailed
common heritage standards through the Council of Australian Governments should be
strongly pursued by the Commonwealth government as part of the review of the Aboriginal
Torres Strait Islander Heritage Protection Act.
The different definitions of Indigenous ‘heritage’ among the states and territories make it
difficult to create a national picture of the extent to which Indigenous heritage is being
protected.
There have been numerous reviews and amendments to Indigenous heritage legislation
during the reporting period, yet none of these reviews has explicitly sought to bring Australia
into line with obligations under international instruments such as the UN Declaration on the
Rights of Indigenous Peoples. International obligations contain stronger provisions for the
role of Indigenous people in heritage management, with an obligation for ‘free, prior and
informed consent’ for impacts to heritage, which is not reflected in Australian laws.
It is recommended that the Australian government sign the Nagoya Protocol in relation to the
Convention on Biological Diversity, to bring key Australian legislation (particularly the
Environmental Protection and Biodiversity Conservation Act) in line with international
standards that require the ‘prior informed consent’ of Indigenous people.
There is a need for an automatic link to elevate Indigenous heritage values from the state
level to the national level, as a response to high rates of applications for emergency
protection of Indigenous heritage and to the high number and rate of authorised destruction
of Indigenous heritage through permits and consents in some jurisdictions.
There is a need for research into and measurement of the cumulative impact of past and
continued approved destruction of Indigenous heritage.
Further research is also needed to determine whether the trends towards increased
recognition and listing of Indigenous heritage is, in fact, an indicator of improved protection
of Indigenous heritage in Australia. It is recommended that this research be a priority for
future State of the Environment Reporting.
It is also strongly recommended that consultation be undertaken with key Indigenous
heritage bodies and other heritage stakeholders to establish an appropriate framework for
assessing and aligning data from state and territory Indigenous heritage registers, along with
requirements for standard reporting of state data for future State of the Environment
Reports.
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State of Indigenous cultural heritage 2011
This framework should include a strategy for establishing clearer baseline data against
which trends in the condition of Indigenous sites on state and territory Indigenous site
registers in future State of the Environment Reports can be reported. In particular, a
mechanism is needed to indicate destruction of sites and removal of places from state and
territory Indigenous cultural heritage registers to monitor the state of Indigenous cultural
heritage.
It is recommended that consideration be given to revising and expanding reporting on
cultural practices in future SoE reports, within a framework that integrates the reporting of
‘cultural practices’ with ‘Indigenous heritage’.
There is a need for more work at the national level to develop appropriate and meaningful
indicators for assessing the state of traditional knowledge and cultural practices. This work
should be guided by international developments, especially those relating to the indicators
being developed by the Article 8(j) Working Group of the Convention on Biological Diversity.
The development of new indicators for assessing traditional knowledge and cultural practice
must be undertaken in partnership with Indigenous people
Suggested traditional knowledge and cultural practice indicators might include:
 Indicators relating to numbers of Commonwealth, state and territory government
programs to preserve, maintain and revitalise traditional knowledge and funding
allocated by those governments to support such programs;
 Indicators related to laws, regulations and policies that recognise and enable cultural
practice; and
 Indicators related to recognition of Indigenous customary laws and protocols.
Use of these indicators must be backed by appropriate systems for collecting data. The
timeframes involved in data collection must be realistic and long-term.
The international trends in thinking about indicators for biodiversity and Indigenous people
also recognise the link for Indigenous communities between a healthy environment, strong
culture and strong people. It is recommended that indicators relating to happiness, health
and wellbeing are explored in any re-evaluation of the SoE Reporting framework.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
1.
Introduction
In the more than 40,000 years that Indigenous people have owned and managed the
Australian continent, it is estimated that as many as 600 Indigenous cultures existed,1 with
diverse systems of government, languages, cultural practices, religions and traditions,
extending across different parts of the country.
Indigenous people in Australia, like Indigenous people across the globe, were significantly
impacted by colonisation. Forced removal from traditional lands, a lack of understanding and
respect for Indigenous cultures, and policies of destruction and assimilation, have left
Indigenous peoples’ cultures and heritage vulnerable and endangered.2
Yet Indigenous peoples have resisted and endured. Today there are more than half a million
Indigenous people in Australia, making up around 2.5% of the total Australian population.
Indigenous people live in all parts of Australia; from large cities to small country towns and
very remote communities.3
Although a reduced number of Indigenous people live on their traditional lands, many
Indigenous people continue to identify with their distinct nation and language groups and
Australia's Indigenous people today speak approximately 145 different languages with
varying degrees of fluency.
1.1
Indigenous concepts of cultural heritage
Indigenous people view the world they live in as an integrated whole. The lands, waters,
biodiversity, cultural sites and objects are linked with the knowledge, practices and
expressions that relate to them. Indigenous cultural heritage comprises the intangible and
tangible aspects of the whole body of cultural practices, resources and knowledge systems
that have been developed, nurtured and refined (and continue to be developed, nurtured
and refined) by Indigenous people and passed on by Indigenous people as part of
expressing their cultural identity.4
Based on estimated number of Indigenous language dialects, see Bianco, J.L. (2009). ‘Organising
for Multilingualism: Ecological and Sociological Perspectives’ in Social Justice Report 2009,
Australian Human Rights Commission, Sydney, p 57.
2 Battiste, M. and Youngblood Henderson, J. (2000). Protecting Indigenous Knowledge and Heritage:
A Global Challenge, Purich Press, Saskatoon.
3 Australian Bureau of Statistics, ‘Topics @ a Glance - Aboriginal and Torres Strait Islander Peoples’
webpage,
http://www.abs.gov.au/websitedbs/c311215.nsf/web/Aboriginal+and+Torres+Strait+Islander+Peoples
(accessed 12 May 2011).
4 Janke, T. and Frankel, M., (1998). Our Culture, Our Future: Proposals for the recognition and
protection of indigenous cultural and intellectual property, final report to the Australian Institute of
Aboriginal and Torres Strait Islander Studies, Canberra p 2.
1
Australia ■ State of the Environment 2011 Supplementary information
14
State of Indigenous cultural heritage 2011
The cultural heritage of Indigenous people includes:
 Moveable cultural property (such as objects used for cultural activities, artefacts and
burial remains);
 Immoveable cultural property (including sites of significance, sacred places and
cultural landscapes);
 Lands, waters and biodiversity (including marine waters, seabed and species of flora
and fauna);
 Traditional knowledge (including scientific, agricultural, technical and ecological
knowledge that may relate to cultigens, medicines and sustainable use of flora and
fauna; spiritual and religious knowledge; knowledge of kinship and social
organisation);
 Expressions of culture (including ceremony, narrative, story telling, literary works,
dance, film, art works);
 Languages;
 Indigenous ancestral remains;
 Indigenous human genetic material (including DNA samples); and
 Documentation of Indigenous peoples' heritage in all forms of media (including
scientific, ethnographic research reports, papers and books, films and sound
recordings).5
As the Aboriginal people responsible for recommending reforms to NSW heritage laws in
NSW stated in their Report of the NSW Ministerial Task Force on Aboriginal Heritage and
Culture 1989:
The Task Force members were (and remain) unanimous in their view that the term
‘heritage’, especially as it is used in most legislations, is too limited and that culture
(which we believe is ultimately inseparable from heritage) must also be included. Thus,
we are also interested in protection and management of, for example, language, oral
history, music, dance and the relationship of people with the land. This was re-enforced
by our belief that we are not dealing with a fossilised, static set of phenomena but with a
living, dynamic culture of which heritage, including the last 200 years, is an integral part.
From the outset then, we have been a Task Force on Aboriginal Heritage and Culture.
1.2
Methodology for this report
For the purposes of this report, the state of Indigenous heritage is reported against five
'themes'. These are:
 Management of Indigenous heritage in Australia
 Moveable and immoveable cultural property;
 Land, water, and biodiversity;
5
Above note 4, pp 2-3.
Australia ■ State of the Environment 2011 Supplementary information
15
State of Indigenous cultural heritage 2011
 Intangible cultural heritage (including languages, traditional knowledge and cultural
practices); and
 Pressures impact Indigenous heritage.
While these themes do not capture all aspects of Indigenous heritage, they do represent
some important types of Indigenous heritage for which it was possible to find data for this
report.
In providing information about the current state of Indigenous heritage, this report draws on
information about the historic and current legislative and regulatory framework for the
management of Indigenous heritage.
This report also aims to reflect evolving international and national understandings of
Indigenous heritage, by making reference to key international instruments to which Australia
is a party, and to the Indigenous cultural and heritage rights these instruments contain.
These instruments are the Convention on Biological Diversity; Convention on the Protection
and Promotion of the Diversity of Cultural Expressions, UNESCO; and United Nations
Declaration on the Rights of Indigenous Peoples. This report also includes references to the
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, to which
Australia is not a party.
In analysing the data included in this report consideration is given to the influence of the
context and regulatory framework for Indigenous heritage, which a particular focus on:
 Who determines outcomes for Indigenous heritage?
 How is Indigenous heritage managed across jurisdictions?
 What access do Indigenous people or other people have to heritage?
 To what extent does the current regime for regulating Indigenous heritage in Australia
reflect Australia’s obligations and commitments to Indigenous heritage protection and
the recognition of Indigenous heritage rights?
1.3
State of the Environment Reporting framework
The ‘Australia State of the Environment Report’ (or SoE) is a national report of the condition
of Australia’s environment and heritage, prepared by the Commonwealth government every
five years. It is prepared to meet the Commonwealth’s requirements under the key national
environmental legislation in Australia – the Environmental Protection and Biodiversity
Conservation Act 1999 (Cth) (EPBC Act).
The aim of the State of the Environment Report is to capture and present key information on
the state of the environment, including heritage. This incorporates the environment's current
condition, the pressures on it and the responses by government and others.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
As part of the State of the Environment reporting framework, 22 Natural and Cultural
Heritage (NCH) indicators were reported against in the previous State of the Environment
Report (2006).
Of these 22, five are Indigenous specific indicators:
 NCH-02 Process of listing, area and distribution of Indigenous heritage listings;
 NCH-07 Physical condition and integrity of a sample of Indigenous heritage places;
 NCH-11 Funds provided to heritage and other agencies for Indigenous heritage
places;
 NCH-20 Number of people working in Indigenous organisations, number of Indigenous
enrolments in university heritage courses, number of Indigenous people employed by
agencies involved in Indigenous programs and management of Indigenous heritage;
and
 NCH-24 Survey of use of Indigenous languages.6
It is noted that there are a number of other SoE indicators which relate to Indigenous
heritage, notably:
 CO-63 Estimated number of marine animals harvested by Indigenous fishers; and
 BD-07 Examples of Indigenous knowledge of species and ecological communities and
their utilisation for management by Indigenous and non-Indigenous managers and for
other purposes by Indigenous and non-Indigenous people.
The 2011 State of the Environment Committee has identified two NCH indicators as
priorities to assess the state of Indigenous heritage in 2011:
 the physical condition and integrity of Indigenous heritage places (SoE indicator NCH-
07), and
 the use of Indigenous languages (SoE indicator NCH-24).
For this reason, this data collected for this report focuses on these two indicators, with
additional data and research undertaken where possible within the resources available.
6
A full list of SoE Indicators is outlined in the State of the Environment 2006 Data Reporting System.
See Department of Sustainability, Environment, Water, Populations and Communities (DSEWPaC),
‘Index of indicators, themes and issues’ webpage,
http://www.environment.gov.au/soe/2006/publications/drs/indicator/index.html (accessed 1 March
2011). See also Department for the Environment and Heritage (2006). ‘Environmental indicators for
reporting’, issues paper prepared for the 2006 Australian State of the Environment Committee,
http://www.environment.gov.au/soe/2006/publications/emerging/indicators/index.html (accessed 15
March 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
1.4
Data and information used in this report
Information sources used for this report include:
 Publicly available data reports, with some additional data provided on request from
government agencies and non-government organisations (see Appendix 6). In
particular, individual State of the Environment Reports prepared by state and territory
governments have been referenced where possible;
 Interviews with a number of Indigenous heritage organisations and Indigenous people
involved in Indigenous language and heritage management (see Appendix 5);
 Relevant Australian policies and legislative frameworks for the management of
Indigenous heritage; and
 National and international literature.
The authors sought to collect and collate data for the reporting period, that is 2006 to 2011.
Where possible, data from previous State of the Environment Reports was referred to, in
order that new data could build on past State of the Environment reporting and identify
trends over time.
However, as noted in previous State of the Environment Reports, the data available is
generally very poor. Past reporting of Indigenous heritage data in Australian State of
Environment Reports is at times unclear as to the source of data and the specific dates the
data refers to, making it difficult to incorporate new data.
The majority of state and territory jurisdictions also publish State of the Environment
Reports, using a range of reporting frameworks. Reporting about Indigenous heritage varies
significantly across jurisdictions and in many cases key data is not collected, collated or
made publicly available. At the same time, however, the reporting of Indigenous heritage
data in state and territory State of the Environment Reports has significantly improved. A
review of state and territory State of the Environment Reports and other sources conducted
for this report identified new data available for 2001 and 2006.
For this reason, where improved data sources for 2001 and 2006 data were identified these
have been used. It is recommended that, where appropriate, these new data sources be
considered as a refined ‘baseline’ for future Australian State of the Environment reporting.
The availability and limitations of different types of data used in this report are discussed in
more detail under the relevant themes. Further recommendations for improved reporting in
the future are made throughout this report.
This report also includes a series of case studies, which highlight the diversity of Indigenous
values that may be associated with moveable and immovable cultural property, land, water
and biodiversity, and the range of pressures which impact on those values (see Attachment
A). Each case study includes a detailed explanation of site significance as context for
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
understanding why and how certain activities threaten cultural integrity and why certain
responses to these pressures are ineffective or inadequate. The information for these case
studies was collated from interviews with Indigenous groups and desktop research. Case
studies were provided to Indigenous groups for comment.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
2.
Management of Indigenous heritage in Australia
2.1
Introduction
Most jurisdictions manage moveable and immoveable Indigenous heritage through specific
Indigenous heritage legislation. Most jurisdictions’ general state heritage list laws also allow
for listing of significant Indigenous places. There is also a range of other policies, regulations
and laws that directly or indirectly support Indigenous culture and heritage. This includes
some natural resource management legislation, which supports Indigenous cultural activities
such as fishing.
The legal rules that apply to cultural heritage are a key indicator of the response by
government to threats and pressures to heritage. Reporting key trends in relation to
legislation for the protection of Indigenous cultural heritage is a contribution towards priority
State of the Environment Indicator NCH-07 (Indigenous places).
This section contains a review of the laws that currently guide the protection and
management of Indigenous heritage in Australia, with a focus on laws relating to moveable
and immoveable cultural property. There is also a limited review of natural resource
management laws that support Indigenous cultural activities (section 2.10). The states and
territories employ a diverse range of legal methods for protecting and managing Indigenous
heritage, which have been set out in summary form in Appendices 1, 2 and 3.
This section begins with an outline of key trends in relation to the management of
Indigenous cultural heritage (section 2.2). Then some background information on historical
approaches to Indigenous heritage management is provided (section 2.3) as context for the
outline of the current regulatory and legal framework for management of moveable and
immoveable Indigenous heritage (section 2.4) and changes to this framework over the
reporting period (section 2.5).
Then sections 2.6 – 2.9 sets out some of the limits to the effectiveness of those legal
methods of protecting and managing Indigenous heritage that have been identified by
Indigenous people, including:
 the extent to which Indigenous ownership and control of heritage is recognised;
 the extent to which legal definitions of heritage reflect Indigenous concepts of heritage;
 exemptions for activities categorised as ‘low impact’; and
 the extent to which heritage planning is incorporated into the heritage protection
process.
This section concludes by noting some significant international and national developments
(sections 2.11 and 2.12) in relation to Indigenous rights with potential implications for future
management of Indigenous heritage.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
2.2
Key trends
The trend identified in past State of the Environment Reports for increased interest and
activity in Indigenous heritage management has continued.7 Indigenous-specific heritage
legislation, more than general heritage legislation, has been the focus of considerable
government activity in the reporting period, with most jurisdictions either amending their
legislation or undertaking reviews of that legislation.
The reporting period has seen significant reform to the laws and policies that regulate and
protect Indigenous heritage in Australia. There has been a significant increase in the
regulation of Indigenous heritage through increased requirements for Indigenous heritage
assessments to be conducted before developments are approved, across jurisdictions, with
further reforms underway in all jurisdictions.
The changes appear to be entrenching a consultation model with, in some instances, some
measure of Indigenous decision-making power regarding Indigenous heritage management.
There is increasing recognition of the primacy of Traditional Owners and alignment of
heritage legislation with Native Title in terms of determining who may speak for Country.
There is also some limited recognition of Indigenous custodianship of heritage, however the
majority of Indigenous heritage remains owned by the state.
There are an expanding number of government programs and initiatives to support
Indigenous heritage management and Indigenous people to manage, protect and renew
Indigenous culture and heritage places and practices.
However the legislation in most jurisdictions does not have provisions guaranteeing
Indigenous people access to cultural heritage, though there are provisions for Indigenous
people to be exempted from permits if they plan to modify or impact on sites through use.
The fines in some jurisdictions have increased and there are more enforcement mechanisms
for damage to heritage, including unintentional damage. While this trend is viewed as a step
in the right direction, it must be noted that the level of fines and enforcement is still viewed
as inadequate by many Indigenous people.8
7
Lennon, J., Pearson, M., Marshall, D., Sullivan, S., McConvell, P., Nicholls, W. and Johnston, D.
(2001). ‘Natural and Cultural Heritage’, theme report prepared for the 2001 Australia State of the
Environment Committee, published by CSIRO on behalf of the Department of the Environment and
Heritage, http://www.environment.gov.au/soe/2001/publications/themereports/heritage/pubs/heritage.pdf (accessed 27 March 2011) and Lennon, J. (2006). ‘Natural and
cultural heritage’, theme commentary prepared for the 2006 Australian State of the Environment
Committee, http://www.environment.gov.au/soe/2006/publications/commentaries/heritage/index.html
(accessed 27 March 2011).
8 Schnierer, E. (2010). ‘Caring for Culture: Perspectives on the effectiveness of Aboriginal cultural
heritage legislation in Victoria, Queensland and South Australia’, final report to the New South Wales
Aboriginal Land Council, www.alc.org.au/media/69363/caring%20for%20culture%20final.pdf
(accessed 29 August 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Concepts of Indigenous heritage within policy are also expanding, including further growth in
understanding of the relationship of Indigenous people to their traditional Country, the use of
natural resources for cultural purposes and the maintenance and transmission of traditional
knowledge and practices and language maintenance and revival.
However, Indigenous heritage management remains highly contested. The reporting period
saw a number of high profile disputes over development approvals played out in the media.
The changes to Indigenous heritage legislation in the reporting period fall short of
contemporary international standards for the involvement of Indigenous people in heritage
management, particularly in relation to the recognition of Indigenous peoples culture and
heritage rights. The provisions of international instruments such as the United Nations
Declaration on the Rights of Indigenous Peoples, to which Australia became a party in the
reporting period, are yet to be translated into significant legislative reform in Indigenous
heritage and environmental regulation.
Also significant over the reporting period were increased efforts to recognise Indigenous
cultural rights in relation to natural resources and increasing development of legislative
mechanisms to involve Indigenous people in the management of natural resources. There is
also a growing recognition that, for Indigenous people, natural resources are also ‘cultural
resources’. This is reflected in recent amendments to policies and laws that move from
recognition of Indigenous people’s access to natural resources (such as fish and native
plants) for personal, domestic food consumption, to use for medicinal, ceremonial and
economic purposes, as well as maintenance and transmission of traditional knowledge and
practices.9
At the international level over the last decade in particular there has been a major expansion
in the number of instruments, forums and research bodies focused on Indigenous heritage,
its relationship to the environment, and Indigenous rights, as discussed in later sections of
this report.
Most recently at the national level there has been a major review of the Environmental
Protection and Biodiversity Conservation Act 1999 (Cth) and the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 (Cth), held over 2008 and 2009, which has
recommended further integration of Indigenous heritage into a national environmental law.10
Smyth, D., Isherwood, M. and Schnierer, S. (unpublished) ‘Right to Use Country: Towards a
freestanding statutory right for Traditional Owners to non-commercial access to and use of natural
resources in Victoria’, final report to the Victorian Department of Justice 2010.
10 Hawke, A. (2009). ‘Independent review of the Environment Protection and Biodiversity
Conservation Act 1999’, final report to the Minister for the Environment, Heritage and the Arts,
http://www.environment.gov.au/epbc/review/index.html (accessed 27 March 2011).
9
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
2.3
Background to Indigenous heritage management in Australia
2.3.1 Early Indigenous heritage management in Australia
Historically, Australia’s heritage laws and policies have not recognised or sought to protect
Indigenous heritage places, because Indigenous heritage was not well understood and
because of the dominant view that Indigenous peoples and their cultures were inferior.11
Indigenous cultural practices, especially use of language, were discouraged or prohibited.
When specific laws dealing with Indigenous heritage places and objects were passed, which
occurred in most Australian jurisdictions between 1967 and 1975, these were framed as
‘relics’ acts,12 reflecting the view that Indigenous heritage would eventually become extinct
or be assimilated into ‘mainstream’ Australian society. In this context laws and policies often
identified archaeologists, rather than Indigenous people, as the experts on Indigenous
heritage able to identify and advise on Indigenous heritage (with some exceptions).13
Australian heritage laws and policies were developed which maintained a separation
between Indigenous heritage and other kinds of heritage, though in keeping with
international practice, all cases ‘heritage’ tended to be defined narrowly to refer to tangible or
physical places or objects, with a separation between ‘historical’ and ‘natural’ heritage.14
Following from international developments in heritage management such as the International
Charter on the Conservation and Restoration of Monuments and Sites (the Athens Charter)
in 1931, the establishment of the International Council on Monuments and Sites (ICOMOS),
and the World Heritage Convention in 1972, the first nationwide Australian historical heritage
identification and assessment legislation passed in the form of the Australian Heritage
Commission Act 1975 (Cth).15 The Burra Charter: The Australian ICOMOS Charter for
Places of Cultural Significance (Burra Charter) followed in 1999.16 These instruments
focused on heritage in the form of art and architecture and did not include specific provisions
for Indigenous heritage.
11
Colley, S. (2002). Uncovering Australia: Archaeology, Indigenous people and the public, Allen and
Unwin, Sydney.
12 National Native Title Tribunal (2010). ‘Commonwealth, State and Territory Cultural Heritage
Regimes: Summary of provisions for Aboriginal consultation’, final report to the New South Wales
Aboriginal Land Council,
http://www.alc.org.au/media/61790/101221%20nntt%20heritage%20regimes%20aboriginal%20consul
tation%20final.pdf (accessed 15 March 2011).
13 See for example discussion of the Northern Territory Aboriginal Sacred Sites Act 1979, above note
12.
14 Marsh, J. K. (2010). ‘Looking after Cultural Heritage and Valued Resources’ (Ch. 3) in A Critical
Analysis of Decision-Making Protocols used in Approving Commercial Mining Licence for the Beverley
Uranium Mine in Adnyamanthanha Country: Towards Effective Indigenous Participation in Caring for
Cultural Resources,
http://www.desertknowledgecrc.com.au/resource/jillianmarsh_phd_effectiveIndigenousparticipation_b
everleymine.pdf (accessed 10 May 2011).
15 Above note 7.
16 Australian ICOMOS Inc (1999). Burra Charter: The Australian ICOMOS Charter for Places of
Cultural Significance, http://australia.icomos.org/wp-content/uploads/BURRA_CHARTER.pdf
(accessed 10 March 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
At the same time, in the late 1970s and 1980s the importance of involving Indigenous people
in decisions about Indigenous heritage began to gain acceptance,17 due in no small part to
ongoing campaigns by Indigenous people for Indigenous land rights, the protection and
return of sacred sites and recognition of others rights to practice culture.
The development of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(Cth) was a significant step forward. This Act recognised that the significance of heritage
places should be defined by Indigenous people in accordance with Indigenous traditions. In
the heritage management sector more broadly this reflected the evolving principles in the
Burra Charter, that communities should determine the significance of their heritage. The
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) also empowered the
Commonwealth to take action where a state failed to protect Indigenous heritage.18
By the 1990s a range of new policies were implemented for consultation with Aboriginal
people. In 2002 the Australian Heritage Commission’s Ask First publication identified
consultation with Aboriginal people as best practice in heritage management.19 Ask First
identifies Indigenous people as the ‘primary source of information on the value of their
heritage and how it is best conserved’, and states that ‘uncertainty about Indigenous
heritage values should not be used to justify activities that might damage or desecrate this
heritage’.
While moving in the right direction, these new policies began to entrench a role for
Indigenous people in heritage management based on consultation rather than formal
decision-making, enforceable rights, requirements for free, prior, informed Indigenous
consent or recognition of Indigenous ownership of heritage, as advocated by Indigenous
peoples.
The Native Title Act 1993 (Cth) was also another significant development. Following
recognition of Indigenous people’s prior ownership of Australian lands and waters by the
High Court in 1992, the Native Title system recognises Indigenous peoples traditional
cultural connection to particular lands and waters, and includes mechanisms for the return of
land or access and use of lands, particularly for cultural purposes. As discussed in more
detail in section four (Land, Water and Biodiversity), today Native Title plays an important
role in Indigenous heritage in some parts of Australia.
17
Above note 12.
See discussion of high profile cases involving the destruction of Indigenous sacred sites and the
role of the Commonwealth in: Kartinyeri v Commonwealth [1998] HCA 22; above notes 12 and 14;
and Goldflam, R. (1997). ‘Noble Salvage: Aboriginal Heritage Protection and the Evatt Review’, 2
Aboriginal Law Bulletin, http://www.austlii.edu.au/cgibin/sinodisp/au/journals/AboriginalLawB/1997/2.html?stem=0&synonyms=0&query=evatt%20review
(accessed 1 April 2011).
19 Australian Heritage Commission, Ask First: a guide to respecting Indigenous heritage places and
values,
http://www.environment.gov.au/heritage/ahc/publications/commission/books/ask-first.html
(accessed 1 March 2011).
18
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
In the heritage sector in the mid to late 1990s there were proposals to establish national
heritage standards, and reform existing environmental legislation. Amendments to the
Environment Protection and Biodiversity Conservation Act 1999 (Cth) in 2003 broadened the
definition of ‘environment’ to include the heritage value of places, and the social and cultural
aspects of natural resources. This reflected international trends to recognise the interrelationship and connections between natural and cultural heritage.
Heritage, including Indigenous heritage, became more integrated into environmental and
planning assessments, and amendments to Indigenous heritage legislation in some cases
formalised consultation or advisory roles for Indigenous people. General heritage legislation
was revised to recognise Indigenous heritage values in some jurisdictions.
Concepts of ‘heritage’ have expanded to recognise ‘cultural landscapes’. There has been an
increasing recognition of the link between Indigenous heritage and broader Aboriginal
concepts of land (‘Country’), and recognition that Aboriginal heritage places extend beyond
relics and defined areas, and include areas of lands and waters, natural formations, and
related natural resources. In New South Wales, for example, the Department of
Environment, Climate Change and Water has adopted a cultural landscape approach to
heritage management.20
2.3.2 Recent reforms to Indigenous heritage legislation
In the 2000s, Queensland, Victoria and the Australian Capital Territory had all implemented
new, dedicated Indigenous heritage legislation, and a range of reviews were undertaken in
other states.21
New legislation such as the Aboriginal Heritage Act 2006 (Vic) established formal roles for
Indigenous organisations and people in decision making, moving beyond consultation to
formal mechanisms for Indigenous people in terms of consent and approvals. There was
also a move by policy makers towards recognising the primacy of ‘Traditional Owners’ in
Indigenous communities.
In other jurisdictions, Indigenous heritage legislation persisted largely unchanged. For
example, Aboriginal Heritage Act 1972 (WA), the Aboriginal Relics Act 1975 (Tas) and the
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) all remain in force
with few changes although reviews recommended changes.22 It is important to note however
that significant further reforms to Indigenous heritage legislation are planned or underway in
all state and territories. These are discussed in the following sections.
20
New South Wales Department of Environment, Climate Change and Water (2010). Cultural
Landscapes: A Practical Guide for Park Management,
http://www.environment.nsw.gov.au/chresearch/culturallandscapesguide.htm (accessed 29 August
2011).
21 Above note 12.
22 Above note 12.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Overall, developments in Australian legislation and policy over the last 40 years have led to
a significantly expanded role for government in decision-making about heritage.23 While
Indigenous people have been increasingly recognised, ‘consultation’ with ‘knowledge
holders’ rather than decision-making by owners remains the basis of recognition under most
schemes.
2.4
Current regulatory framework for protection and management
of Indigenous heritage
In Australia the primary responsibility for management and protection of Indigenous heritage
lies with state and territory governments, and is guided by state and territory legislation. A
list of current Australian Indigenous heritage legislation is included in Appendix 1. A review
and evaluation of the main provisions of this legislation is also included in Appendix 2.
Local governments also have an important role in terms of approval developments and
maintaining heritage registers in many areas. However, it was outside the scope of this
report to examine the role of local government in detail.
State and territory governments are generally responsible for:
 maintaining heritage registers;
 maintaining Indigenous site registers;
 planning and development approvals, including mining and forestry, through bilateral
agreements such as the Regional Forestry Agreements (RFAs);
 most natural resource management laws, including fishing and hunting licences, native
vegetation and threatened species;
 managing most reserve and park lands; and
 Indigenous land rights legislation.
In accordance with the 1997 Council of Australian Government Heads of Agreement on
Commonwealth/ State Roles and Responsibilities for the Environment, the Commonwealth’s
responsibilities for the protection of cultural heritage are primarily limited to matters of
national and international significance, and heritage on Commonwealth lands.
The Commonwealth’s specific heritage responsibilities include:
 The World Heritage List;
 The National Heritage List;
 The Commonwealth Heritage List;
 Emergency protection for Indigenous heritage in some cases (through the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 (Cth);
23
Above note 14.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
 Movable cultural heritage, in relation to export and sale and in some cases Indigenous
repatriation;
 Approval for developments: undertaken by the Commonwealth, impacting on
Commonwealth protected areas or on Commonwealth controlled lands, or in some
cases developments which will impact on certain threatened species or relate to
certain types of pollution (such as nuclear); and24
 The environment (including Indigenous heritage) through the Environment Protection
and Biodiversity Conservation Act 1999 (Cth).
The Commonwealth’s role is triggered by matters of national or world heritage significance.
The Commonwealth also has Indigenous heritage responsibilities in terms of funding and
Native Title.
2.5
Changes to Indigenous heritage legislation in the reporting
period
In the reporting period a number of significant changes have been made to relevant state
and territory Indigenous heritage legislation. Detailed information regarding changes to
Indigenous heritage legislation in the reporting period is included in Appendix 4.
As set out in Table 1, in the majority of jurisdictions Indigenous heritage laws are the subject
of major reform, with reviews and reforms planned in all jurisdictions.
Table 1. Reviews and amendment of Indigenous heritage legislation since 2005
Cth ACT NSW NT
QLD
SA
Tas Vic WA
Key Indigenous
heritage legislation
amended since 2005
Key Indigenous
heritage legislation
currently under review


















While there is no consistency to the changes in each state and territory, there are a number
of trends:
 Changes appear to be entrenching a consultation model with, in some instances,
some measure of Indigenous decision-making power and recognition of custodianship
of Indigenous heritage.
 There is increasing recognition of the primacy of Traditional Owners and alignment of
heritage legislation with Native Title in terms of determining who may speak for
Country.
New South Wales Environmental Defenders Office, ‘Fact Sheets’ webpage, www.edo.org.au/nsw
(accessed 27 March 2011).
24
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
 The fines in some jurisdictions have increased and there are more enforcement
mechanisms for damage to heritage, including unintentional damage. While this trend
is viewed as a step in the right direction, it must be noted that the level of fines and
enforcement is still viewed as inadequate by many Indigenous people.25
2.6
Indigenous ownership and control of heritage
It is noted that a number of the laws cited include broad aims to recognise Indigenous
ownership or control of heritage. It is also recognised that Indigenous people are involved in
the management of Indigenous heritage in a range of other important ways, which include
major decision-making roles. However, this section is focused on provisions to recognise
Indigenous control of heritage in legislation.
Table 2. Legislative recognition of Indigenous ownership and control by jurisdiction
Cth ACT NSW NT
QLD
SA
Tas
Vic
Recognises Indigenous 
ownership of heritage
sites and objects
Indigenous consent

required before site or
object is damaged or
destroyed
Indigenous consultation 
required before
decision is made about
harm to site or object





Objects and 
Custodianship
remains



WA
Objects 
and
remains


Review- 
able








Notes: The table above refers to the existence of formal mechanisms in legislation for control over Indigenous
heritage by Indigenous people. Aims or objectives within legislation that recognise Indigenous people, in the
absence of defined or enforceable rights, are not classified as legal recognition of Indigenous ownership and
control.
Most jurisdictions recognise that legal ownership of Indigenous heritage lies with the state
and not Indigenous people. Where there are provisions for ownership to be transferred, it
can be difficult for Indigenous groups to become recognised as the particular group for
ownership (for example the ‘custodianship’ test applied in Queensland). Alternatively, where
there are processes for return of ownership in legislation these may be used, as, for
example, in New South Wales where no ‘care and control permits’ have been entered into.
Most legislation mandates a consultative role for Indigenous people. In nearly all cases there
is recognition that Indigenous people determine the significance of heritage as per the Burra
Charter principles, and there are some avenues for Indigenous people to challenge
decisions where there has not been consultation.
25
Above note 8.
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Most of these Acts do not have provisions guaranteeing Indigenous people access to
cultural heritage, though there are provisions for Indigenous people to be exempted from
permits if they plan to modify or impact on sites through use.
No Acts have explicit restitution or redress requirements that are directed by Indigenous
communities, though in some cases there is the potential for the government decision-maker
to consult with Indigenous people before making a decision about restitution.
Some legislation includes a general definition as to who in the Indigenous community should
be consulted or whose views have primacy – usually this is the ‘Traditional Owners’ or
Native Title holders. In practice the issue of ‘who speaks for Country’ remains a difficult
question, both for policy makers and the Indigenous community, with little consistency
across jurisdictions as to how this is resolved.
It can also be difficult for Indigenous people to enforce the legal protections that do exist in
legislation. In most cases, the Minister is responsible for issuing stop work orders or other
actions if a site is under threat or a government agency is responsible for prosecuting
breaches. There are some legal avenues for Indigenous people to take action, such as
through the Land and Environment Court in New South Wales, but these mechanisms are
rarely, if ever, used.
2.7
Definitions of Indigenous heritage
Definitions of both Indigenous and other kinds of heritage under current legislation are
largely focused on places and objects. A common criticism from Indigenous communities is
that the definition is narrow and encourages anachronistic concepts of heritage focused on
‘stones and bones’, rather than a concept of heritage based on practices that are dynamic
and living.26
Another common criticism from Indigenous communities is that heritage legislation is not
holistic, and fails to take into account intangible cultural heritage.27
Most, but not all, Indigenous heritage legislation allows for the recognition of heritage with
contemporary Indigenous cultural heritage values, such as sites because of their recent or
current use or development. Though contemporary Indigenous sites are not a large
percentage of listed sites.
Definitions of heritage increasingly allow for the recognition of heritage ‘areas’ and cultural
landscapes. However it is noted that there are limited processes in place to facilitate the
registration of large or regional areas for their heritage value, rather than individual ‘sites’,
perhaps because of the potential limitation this would place on land uses.
26
27
Above note 8.
Above note 8.
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Some jurisdictions have been slow to accommodate concepts of ‘shared heritage’, that is
places that have both Indigenous and non-Indigenous heritage values. This is changing
though. For example, in the reporting period the New South Wales State Heritage Register
program undertook a review of listings to capture Indigenous values for places already listed
for other values.
2.8
Exemptions for ‘low impact’ activities
Indigenous heritage legislation uses a combination of duty of care processes (for example in
Queensland, New South Wales and Victoria) and, in most cases, specific approvals from the
relevant Minister or other decision-maker, where an action is likely to impact on heritage.
However, many jurisdictions provide exemptions for activities considered ‘low impact’,
including New South Wales and Queensland, where activities such as farming and smallscale developments are exempted.
The exemptions for ‘low impact’ activities are problematic because certain Indigenous site
types are vulnerable to the kinds of activities that are considered low impact. For example,
new activities which are similar to past patterns of activity on land are often considered ‘low
impact’, because it is assumed that there is no extra or new impact if those activities
continue. There is also a tendency to categorise activities that have historically not required
approval as ‘low impact’. These types of activities, such as farming, have usually been
carried out on an ongoing basis, over long periods of time. The exemption for these types of
activities assumes that all Indigenous heritage values in the area have already been
destroyed, which is not always the case.
2.9
Heritage planning
Regional planning to manage heritage is incorporated in some but not all legislation (for
example Queensland and Victoria). Most other Indigenous heritage legislation is based
around listing identified sites, and then dealing with potential risks to those sites by
Ministerial approvals or permits. This leads to reactive rather than proactive Indigenous
heritage planning.
2.10 Legislation for access, use and management of cultural
environmental resources
There are a range of state and territory natural-resource management laws that recognise
Indigenous rights to access, use and manage cultural environmental resources such as
lands, waters and biodiversity. These types of access and use provisions foster Indigenous
cultural practice and are an important indicator of the state of Indigenous traditional
knowledge.
A limited review of legal recognition of Indigenous rights to access, use and manage cultural
environment resources has been undertaken for this report. A summary of the key legislative
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
provisions for the recognition of Indigenous access, use and management of natural
resources in Australia is included in Appendix 3. This is by no means a comprehensive
review, but it highlights the diversity of current laws in operation in Australia and indicates
there are trends:
 Towards the development of mechanisms in legislation to formally recognise
Indigenous people access, use and management of natural resources;
 Away from recognition of Indigenous peoples’ access to natural resources (such as
fish and native plants) for personal, domestic food consumption only; and
 Towards recognition of the use of natural resources by Indigenous people for cultural,
medicinal, ceremonial and economic purposes and to enable the maintenance and
transmission of traditional knowledge and practices. 28
It is also noted that in the reporting period some states moved to improve recognition of
Indigenous cultural practices in natural resource management legislation, for example, in
2010 New South Wales introduced an Aboriginal fishing right in the Fisheries Management
Act 1994 (NSW).
2.11 Recent international developments
Australia is party to a number of international instruments relevant to the protection and
management of Indigenous cultural heritage. These include the:
 International Covenant on Civil and Political Rights (ICCPR);
 International Covenant on Economic, Social and Cultural Rights (ICESCR); and
 International Labor Organisation Convention Regarding Indigenous and Tribal Peoples
in Independent Countries (ILO 169).29
Historically, Australia’s implementation of these instruments through legislation and policies
has not extended to full recognition of the Indigenous heritage rights specified by the
agreements.30
In the reporting period the Australia Government formally acknowledged its support for the
United Nations Declaration on the Rights of Indigenous Peoples and the United National
28
Above note 9.
See: United Nations Secretariat of the Permanent Forum on Indigenous Issues (2009). ‘State of the
World’s Indigenous Peoples’, http://www.un.org/esa/socdev/unpfii/documents/SOWIP_web.pdf
(accessed 1 March 2011); and New South Wales Environmental Defenders Office, Submission to
Department of Foreign Affairs and Trade (DFAT) on the international regime for Access and Benefit
Sharing under the Convention on Biological Diversity (25 June 2010),
http://www.edo.org.au/edonsw/site/pdf/subs/100625abs_submission.pdf (accessed 1 March 2011).
30 Chapman, T. (2008). ‘Corroboree Shield: A comparative historical analysis of (the lack of)
International, National and State level Indigenous cultural heritage protection’, 5 Macquarie Journal of
International and Comparative Environmental Law, pp 81-96,
http://www.law.mq.edu.au/html/MqJICEL/vol5/1-04Chapman.pdf (accessed 31 March 2011).
29
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Educational, Scientific and Cultural Organisation (UNESCO) Convention on the Protection
and Promotion of the Diversity of Cultural Expressions.31
2.11.1 United Nations Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples recognises a range of
Indigenous rights including:
 the right of Indigenous peoples to practice, protect and revitalise their cultures;
 the right to participate in decision-making, rights over lands, waters and natural
resources;
 the requirement that states consult and cooperate in good faith with Indigenous
peoples to obtain their free, prior and informed consent before adopting and
implementing legislative or administrative measures that may affect them; and
 the right to maintain control and protect traditional knowledge (see Articles 11, 12, 13,
24, 25 and 31 in particular).32
2.11.2 UNESCO Convention on the Protection and Promotion of the Diversity
of Cultural Expressions
The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural
Expressions recognises that culture is the mainspring for sustainable development. It sets a
framework for the governance and management of culture by:
 Encouraging the introduction of cultural policies and measures that nurture creativity,
provide access for creators to participate in domestic and international marketplaces
where their artistic works/expressions can be recognised and compensated and
ensure these expressions are accessible to the public at large;
 Recognising and optimising the overall contribution of the cultural industries to
economic and social development, particularly in developing countries;
 Integrating culture into sustainable development strategies and national development
policies; and
 Promoting international cooperation to facilitate the mobility of artists as well as the
flow of cultural goods and services, especially those from developing nations.
2.11.3 Nagoya Protocol (Convention on Biological Diversity)
Another significant development for recognition of Indigenous cultural heritage rights in the
reporting period was the adoption of the Nagoya Protocol on Access to Genetic Resources
and the Fair and Equitable Sharing of Benefits Arising from their Utilisation of the
Australian Human Rights Commission, ‘United Nations Declaration on the Rights of Indigenous
People’ webpage, http://www.hreoc.gov.au/social_justice/declaration/index.html (accessed 1 March
2011).
32 Australian Human Rights Commission (2011). Community Guide to the UN Declaration on the
Rights of Indigenous Peoples, http://www.hreoc.gov.au/declaration_Indigenous/index.html (accessed
1 March 2011).
31
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Convention on Biological Diversity (the Nagoya Protocol). The Nagoya Protocol opened for
signatures on the second of February 2011.33
The Convention on Biological Diversity, as a key international instrument that Australia has
ratified, already contained a number of specific provisions recognising the culture and
heritage significance of biodiversity for Indigenous peoples, including:
Preamble
The Contracting Parties…Recognizing the close and traditional dependence of many
Indigenous and local communities embodying traditional lifestyles on biological
resources, and the desirability of sharing equitably benefits arising from the use of
traditional knowledge, innovations and practices relevant to the conservation of
biological diversity and the sustainable use of its components…Have agreed as
follows:…
Article 8 In-situ Conservation
Each Contracting Party shall, as far as possible and as appropriate:…(j) Subject to
its national legislation, respect, preserve and maintain knowledge, innovations and
practices of Indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity and promote
their wider application with the approval and involvement of the holders of such
knowledge, innovations and practices and encourage the equitable sharing of the
benefits arising from the utilization of such knowledge, innovations and practices;...
Article 10. Sustainable Use of Components of Biological Diversity
Each Contracting Party shall, as far as possible and as appropriate:…(c) Protect and
encourage customary use of biological resources in accordance with traditional
cultural practices that are compatible with conservation or sustainable use
requirements;...34
The Convention on Biological Diversity (or CBD) is founded on three broad objectives:
conservation, sustainable use and access and benefit sharing in relation to biological
resources. The focus for Indigenous people has been access and benefit sharing in relation
to use of Indigenous traditional biodiversity-related knowledge, focused at the genetic and
biochemical level, rather than species or ecosystem level. The driving force behind the
provisions was concern by Indigenous people about exploitation of traditional ecological
knowledge by pharmaceutical researchers.
Indigenous people claim these genetic and biochemical resources as their heritage, on the
basis that their traditional ecological knowledge of medicinal qualities or plants or cultigens is
United Nations Convention on Biological Diversity, ‘Ngoya Protocol’ webpage,
http://www.cbd.int/abs/ (accessed 15 March 2011).
34 Secretariat of the Convention on Biological Diversity, Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the
Convention on Biological Diversity (full text English version),
http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf (accessed 1 March 2011).
33
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part of their cultural heritage. The Nagoya Protocol was negotiated in response to the need
for a more robust and legally binding regime for ‘Access and Benefit-Sharing’ (also known as
‘ABS’) under the Convention on Biological Diversity, following a failure by Parties to the
Convention to effectively implement these measures.35
This includes in Australia, where legislation such as the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) aims to recognise the role of Indigenous people in
conservation (see ‘Objects’ of the EPBC Act, at section three) but does not include binding
mechanisms to ensure that this occurs. Similarly, the Environment Protection and
Biodiversity Conservation Regulations 2000 (Cth) contain a process for establishing ‘benefitsharing agreements’ with Indigenous people over Commonwealth land (see Regulation 8A),
although this process has never been used.
The Nagoya Protocol secures a number of rights for Indigenous peoples that previously
relied upon voluntary action by Parties to the Convention.36 It explicitly adopts within the
Convention of Biological Diversity the Indigenous rights identified by the United Nations
Declaration on the Rights of Indigenous Peoples, and affirms Indigenous rights over
biological resources and the traditional cultural knowledge associated with the utilisation of
those resources.
The Nagoya Protocol obliges Parties to take action to recognise and protect Indigenous
rights and interests and make policies based on the principles of prior informed consent and
access to resources and traditional knowledge upon mutually agreed terms.37
The Nagoya Protocol presents an opportunity for the Australian government to update key
legislation, particularly the Environment Protection and Biodiversity Conservation Act 1999
(Cth), to require the ‘prior informed consent’ of Indigenous people as stated in the Nagoya
Protocol. However, at the time of writing the Australian government was yet to sign the
Nagoya Protocol. Furthermore, the application of the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) is limited, so the Australian government needs to
encourage states and territories to develop new or modify existing legislation to capture the
spirit of the Nagoya Protocol.
2.11.4 UNESCO Convention on the Safeguarding of the Intangible Cultural
Heritage
Internationally, there have also been developments relating to the UNESCO Convention on
the Safeguarding of the Intangible Cultural Heritage, including the establishment of the ‘List
of Intangible Cultural Heritage in Urgent Need of Safeguarding’, which as of 2010 had 232
listings. Unfortunately, these developments have no impact on Indigenous cultural heritage
because Australia is not yet a party to the Convention.
35
New South Wales Environmental Defenders Office, Ratifying the Nagoya Protocol, submission to
the Department of Foreign Affairs and Trade (20 April 2011),
http://www.edo.org.au/edonsw/site/pdf/subs/110420nagoya.pdf (accessed 30 April 2011).
36 Above note 35.
37 Above note 35.
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2.12 Selected national developments
2.12.1 Visual Artist Resale Royalty
A national scheme was developed in the reporting period to ensure that the benefits from
increasing art sales flow to Indigenous people. Indigenous artists now receive a 5% share in
resale profits on their work. In the period from 9 June 2010 (when the ‘resale royalty’
commenced) to 18 April 2011, Indigenous artists received a total of $171,000 on 928
resales.38
The introduction of the resale royalty was a significant coup for Indigenous artists. Total
Indigenous Australian art sales in 2010 are estimated at $10.1 million, but from 2004 to 2007
was as high as $26 million per annum – this includes primary sales and resales.
2.12.2 Constitutional recognition of Indigenous peoples
There have been some further recent positive developments with Indigenous peoples in
terms of formal recognition in constitutions, at the state and national level:
 The Queensland Constitutional Convention, held in June 1999, recommended that the
constitutions of each state should recognise the custodianship of the land by
Aboriginal and Torres Strait Islander peoples. Queensland’s constitution was formally
changed in 2010.
 Victoria became the first state to recognise the Aboriginal people of Victoria in its
constitution in 2004.
 In 2010, the New South Wales Parliament passed legislation to recognise Aboriginal
peoples in the NSW Constitution.
In 2011, nationwide consultations were launched to determine how Indigenous peoples
could be recognised in the Australian Constitution and the appointment of an Expert Panel to
lead the consultations.39
2.13 Comments and recommendations
It is strongly recommended that the current reporting framework for the State of the
Environment be reviewed, including a thorough review of legislation for the management of
land, water, sea and biodiversity at the Commonwealth and state level, with a view to
updating the framework for assessing Indigenous ‘heritage’ to better incorporate cultural
practices.
Copyright Agency Limited, ‘About the artists’ resale royalty scheme’ webpage,
http://www.resaleroyalty.org.au/about-resale-royalty.aspx (accessed 20 April 2011).
39 Australian Department of Families, Housing, Community Services and Indigenous Affairs
Constitutional Reform, ‘Constitutional recognition of Indigenous Australians’ webpage,
http://www.fahcsia.gov.au/sa/Indigenous/progserv/engagement/Pages/constitutional_recognition.aspx
(accessed 9 September 2011).
38
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There is a wide range of different agencies responsible for Indigenous heritage legislation
across jurisdictions, yet there are no national requirements for consistency in the
management of Indigenous heritage in Australia. Previous attempts to develop detailed
common heritage standards through the Council of Australian Governments should be
strongly pursued by the Commonwealth government as part of the review of the Aboriginal
Torres Strait Islander Heritage Protection Act 1984 (Cth).
The different definitions of Indigenous ‘heritage’ among the states and territories make it
difficult to create a national picture of the extent to which Indigenous heritage is being
protected.
There have been numerous reviews and amendments to Indigenous heritage legislation
during the reporting period, yet none of these reviews has explicitly sought to bring Australia
into line with obligations under international instruments such as the United Nations
Declaration on the Rights of Indigenous Peoples. International obligations contain stronger
provisions for the role of Indigenous people in heritage management, with an obligation for
‘free, prior and informed consent’ for impacts to heritage, which is not reflected in Australian
laws.
It is recommended that the Australian government sign the Nagoya Protocol in relation to the
Convention on Biological Diversity, to bring key Australian legislation (particularly the
Environment Protection and Biodiversity Conservation Act 1999 (Cth) in line with
international standards which require the ‘prior informed consent’ of Indigenous people.
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3.
Moveable and immoveable cultural property
3.1
Introduction
Immoveable cultural property refers to sites of significance, cultural landscapes, sacred sites
and burials. Moveable cultural property refers to objects that people create or collect which
are parts of Indigenous people’s cultural identity. These objects can be artistic,
technological, historical or natural in origin and include burial artefacts.
Indigenous heritage includes the oldest and rarest parts of Australia’s heritage estate.
Indigenous sites such as rock engravings in Northern Australia are estimated to be up to
40,000 years old, making Australian rock art the oldest human rock art anywhere in the
world.40
One of the primary ways that physical heritage places and objects – both Indigenous and
non-Indigenous – are protected and managed in Australia is through registration or
recording on heritage lists. The types of Indigenous immoveable and moveable heritage
recognised and protected through heritage listing in Australia vary significantly, reflecting the
diversity of Australia’s Indigenous cultures and landscapes, and different approaches by
jurisdictions.
Registered Indigenous heritage sites include, but are not limited to, places where important
activities were or are undertaken by Indigenous people including rock shelters, carved trees,
engravings, travel routes, grinding grooves and natural formations; places of a secret/sacred
nature to which access is restricted to certain people; places of shared history, including
settlements, missions, and massacre sites; and places of contemporary political and
historical significance such as the Aboriginal Tent Embassy.
For Indigenous people, the value of heritage sites is inherently linked to the lands and
waters in which those sites are located, and the ability to access and use those sites.
Access to and control over such significant heritage areas are vital parts of the maintenance
of Indigenous cultures and traditional knowledge, including the ability to pass on culture and
knowledge to the next generation.
3.2
Condition and key trends
3.2.1 Increasing number of places listed for Indigenous heritage values
The reporting period saw an increase in the listing of places recognised for their Indigenous
heritage values on national, state and territory heritage registers. In the case of National and
Young, E. (2010). ‘Bird rock art could be world's oldest’, Australian Geographic,
http://www.australiangeographic.com.au/journal/worlds-oldest-rock-art-found.htm (accessed 15 March
2011).
40
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Commonwealth heritage lists, Indigenous place listings grew faster than other heritage
listings (see Section 3.5).
At the same time Indigenous groups have continued to advocate for increased recognition of
Indigenous heritage values with existing heritage listed areas, including World Heritage
Listed places (as discussed in Section 3.4).
3.2.2 Increased recording and knowledge of Indigenous heritage
Indigenous listings and information contained on state and territory Indigenous heritage
registers and databases grew strongly, in almost all jurisdictions (as discussed in Section
3.8).
The reporting period saw an increase in cultural heritage assessments. In most jurisdictions
the great majority of, and in some cases all, new listings on state and territory Indigenous
registers were generated by Indigenous heritage assessments undertaken as part of
development approvals in order to inform decision makers responsible for protecting,
managing and/or approving impacts on Indigenous heritage (see Section 3.8).
3.2.3 Condition and management of world and national listed heritage places
Available information about the condition and management of world and national Indigenous
heritage places is limited. Case studies completed for sites, including the Wet Tropics World
Heritage Area, indicate that overall condition is good but there are a number of ongoing
direct threats to and underlying pressures on World and Nationally listed places (as
discussed in Section 6 and Case Studies).
3.2.4 Increase in applications for emergency protection of sites
As discussed in Section 3.7, the last five years has seen a significant increase in the number
of applications to the Commonwealth Minister for the Environment to provide emergency
protection of Indigenous heritage places and objects under threat, using powers available
under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (or
ATSIHP Act). The rate of approval of applications by Indigenous people and organisations to
the Minister remains very low.
3.2.5 High rates of authorised destruction of Indigenous heritage
In a number of jurisdictions there is a high rate of permits issued authorising harm and
destruction of Indigenous heritage as a result of development approvals, permits and
consents (as discussed in Section 3.9).
A small number of prosecutions for unauthorised destruction of Indigenous heritage were
reported (see Section 3.10), comprising a small percentage of sites.
3.2.6 Existing Commonwealth programs and funding continued in the period
This includes programs for the repatriation and return of Indigenous heritage (see Sections
3.11 and 3.12). As discussed in Section four and Section five, a number of other
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State of Indigenous cultural heritage 2011
Commonwealth programs support Indigenous heritage including the Indigenous Protected
Areas Program and the Commonwealth Indigenous Culture Support Program.
3.3
Reporting on moveable and immoveable heritage
The data included in this section of the report seeks to update and extend data provided for
State of the Environment priority indicator NCH-07 - Physical condition and integrity of a
sample of Indigenous heritage places, with a focus on identifying data sources which may be
useful baselines for future reporting.
Although some sources of data for this section have improved since previous State of the
Environment Reports, the data are still limited.
In particular, key data sources from state and territory heritage registers vary significantly,
making it difficult to compile and compare data to a national level. Data limitations include:
 The process for identifying and defining Indigenous heritage places varies significantly
across the states and territories. State and territory legislation uses very different
definitions of ‘Indigenous place’, ‘site’, ‘objects’ and ‘area’, and breakdowns of the
different kinds of listings are not readily available. Definitions for listings also changed
within jurisdictions over the reporting period. In this context it does not make sense to
compare absolute numbers of listing across states and territories.
 A combination of blanket coverage (that is, the recording of all known sites) and
registration tests for Indigenous heritage registers in different jurisdictions also means
it is not meaningful to compare the basic number of Indigenous heritage site listings
across states or territories. Some states list a small number of places on registers,
because they only register heritage that has been assessed as ‘significant’. Other state
registers are built on ‘relics’ databases, which record objects alongside sites, resulting
in large numbers of records and overlapping listings.
 Unlike more recent heritage registers, where listings of places can be removed if
heritage values are lost, blanket databases tend to act as a historical record of objects
and sites, regardless of whether they have been destroyed. In some jurisdictions sites
are not removed even where a permit authorising destruction has been issued.
It is also noted that local government bodies hold significant Indigenous heritage information
in some jurisdictions, but it was outside the scope of this report to include this information.
Another key limitation of the data is that it focuses on sites that have been listed. As noted in
previous State of the Environment Heritage Theme Reports, it is widely recognised that
registers, even blanket Indigenous site registers, include only a fraction of the Indigenous
heritage sites that exist. Significant knowledge about the location of unrecorded sites is held
by Indigenous communities.
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3.4
World Heritage List
The World Heritage List is an international list of places of ‘outstanding, universal natural or
cultural heritage value’. Places on this list are recognised for their special universal values
above and beyond the values they hold for a particular nation.41 Only the Australian
government can nominate a property to the World Heritage Committee, which determines
whether an application will be accepted.42
Four of the 19 Australian World Heritage listed properties are inscribed for their Indigenous
cultural world heritage values: Tasmanian Wilderness (1982), the Willandra Lakes Region
(1981), Kakadu National Park (1981), and Uluru-Kata Tjuta National Park (1987).
No additional Australian World Heritage Listed places were inscribed for their Indigenous
cultural values in the reporting period. One existing Australian property on the World
Heritage List was updated: in 2007 the Central Eastern Rainforest Reserves was renamed
the Gondwana Rainforests of Australia ‘to better reflect the values of the property’. 43
However, this change did not affect the place’s recognised World Heritage values.
A number of other places on the World Heritage List have identified Indigenous values,
though these are not recognised through the formal listing. This includes: Fraser Island
(Queensland), the Great Barrier Reef (Queensland), the Wet Tropics (Queensland),
Ningaloo Reef (Western Australia) and the newly re-named Gondwana Rainforests of
Australia (New South Wales and Queensland) and Purnululu National Park (Western
Australia).44 The specific listed values are important, as legal protection generally applies to
the listed heritage values only.
For a World Heritage property in a state or territory, the Commonwealth must use its best
endeavours to ensure that a management plan is prepared and implemented for the
property in cooperation with the relevant state or territory.45 Indigenous consultation is
encouraged.
Of the World Heritage places with listed Indigenous cultural heritage values, two are parks
jointly managed by the Indigenous Traditional Owners: Uluru-Kata Tjuta National Park and
Kakadu National Park. These arrangements formalise the decision-making rights of
United Nations Educational, Scientific and Cultural Organisation (UNESCO), ‘World Heritage
Convention’ webpage, http://whc.unesco.org/en (accessed 23 March 2011).
42 Environment Protection and Biodiversity Conservation Act 1999 (Cth), Part 3.
43 Commonwealth Department of Sustainability, Environment, Populations and Communities,
‘Gondwana Rainforests of Australia more information’ webpage,
http://www.environment.gov.au/heritage/places/world/gondwana/information.html (accessed 30 March
2011).
44 Searches of Australian heritage registers conducted in March 2011.
45 Commonwealth Department of Sustainability, Environment, Populations and Communities, EPBC
Act Fact Sheet: Protecting Australia's World Heritage Properties,
http://www.environment.gov.au/epbc/publications/world-heritage.html (accessed 30 July 2011).
41
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Traditional Owners over the areas, within the limits of the requirements to manage the areas
as parks.
Table 3. Number of Australian World Heritage Listed Places recognised for Indigenous cultural
heritage values 1995 – 2011
1995
2001
2005
2011
Total number of Australian properties on the 11(a)
World Heritage List
Number of Australian properties on the World 4(c)
Heritage List which are listed for their
Indigenous cultural heritage values
14(a)
16(a)
19(b)
4
4
4(b)
(a) Source: Hawke, A. (2009). ‘Independent review of the Environment Protection and Biodiversity Conservation
Act 1999’, final report to the Minister for the Environment, Heritage and the Arts,
http://www.environment.gov.au/epbc/review/index.html (accessed 27 March 2011), pp 84-85.
(b) Source: UNESCO, World Heritage Convention, ‘World Heritage List Statistics’ webpage,
http://whc.unesco.org/en/list/stat#s2, (accessed 30 July 2011). The three additional Australian properties added
to the World Heritage List are the Sydney Opera House in New South Wales in 2007, Australian Convict Sites
across various states in 2010 and the Ningaloo Coast in Western Australia. None of the sites are listed for their
Indigenous cultural values.
(c) Source: Lennon, J. (2006). ‘Natural and cultural heritage’, theme commentary prepared for the 2006
Australian State of the Environment Committee,
http://www.environment.gov.au/soe/2006/publications/commentaries/heritage/index.html (accessed 27 March
2011).
A periodic report assessing the values of properties inscribed on the World Heritage List is
prepared every five years, as an obligation of the World Heritage Convention. A copy of the
periodic report on the condition of World Heritage properties prepared by the Australian
government in 2011 was not available at the time of completion of this report.
However, one of the Case Studies completed for this report considered the condition and
integrity of the Indigenous heritage values of sites or regions that are part of a World
Heritage listed area. This Case Study related to the Wet Tropics World Heritage Area in
Queensland.
Overall the Case Study indicated that:
 The Wet Tropics are in good condition overall;
 The Wet Tropics are recognised for natural heritage values but not for Indigenous
cultural values – a significant concern for Traditional Owners;
 Access and use of rainforest resources are fairly unrestricted for Traditional Owners.
 There has been no determination of Native Title in the Wet Tropics. Traditional Owners
believe that Native Title would empower them with more control over decisions about
management of the region.
 Aboriginal cultural values are generally not given equal weight with other biodiversity
conservation and economic values.
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State of Indigenous cultural heritage 2011
 The social impacts of development on Traditional Owners are not adequately explored
in development planning processes, nor are they given equal weighting in
development decisions.
3.5
National and Commonwealth Heritage Lists
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act)
allows for places with ‘outstanding’ natural, historic and Indigenous heritage value to the
nation to be protected through the National Heritage List. The National Heritage List includes
places on both public and private lands. The Commonwealth Heritage List includes sites that
are:
 on land owned or leased by the Commonwealth or a Commonwealth agency;
 on land in an external territory (including Antarctica, Christmas Island and Norfolk
Island) or the Jervis Bay Territory;
 in Commonwealth waters; or
 outside Australia, but owned or leased by the Commonwealth.
The purpose of this type of listing is to give the Commonwealth greater control over heritage
places which are located in areas that the Commonwealth owns or controls, with some
additional legal protection, though not at the same level as sites listed on the National
Heritage List.46
The Commonwealth Environment Minister determines whether to include a place on the
National Heritage List or Commonwealth Heritage List, following an assessment and public
consultation and advice from the Australian Heritage Council.
As with all other heritage lists across all jurisdictions in the reporting period, the number of
Indigenous places on the National Heritage List and the Commonwealth Heritage List
steadily increased, and the number of Indigenous listings on the Commonwealth Heritage
List grew more quickly than other kinds of listings.
However, the number of Indigenous listings on both the National Heritage List and the
Commonwealth Heritage List are still very small. More than half the Indigenous heritage
listings on the National Heritage List are located in the eastern states (New South Wales and
Victoria) and the Commonwealth Heritage List listed Indigenous places are located primarily
in New South Wales, South Australia and the Northern Territory.
New South Wales Environmental Defenders Office, ‘Commonwealth Heritage Protection Law Fact
Sheet’ webpage, http://www.edo.org.au/edonsw/site/factsh/fs03_2.php (accessed 15 April 2011).
46
Australia ■ State of the Environment 2011 Supplementary information
42
State of Indigenous cultural heritage 2011
Table 4. Number of Indigenous places in the National Heritage
and 2011
Number of Indigenous places
Dec 2005
New South Wales
1
Victoria
2
Queensland
0
Western Australia
0
South Australia
0
Tasmania
0
Northern Territory
0
Aust. Capital Territory
0
External Territories
0
TOTAL
3 out of 23 (a)
List by state and territory 2005
Number of Indigenous places
April 2011
3
4
1
3
0
0
2
0
0
13 (b) out of 95 (c)
(a) Source: Department of the Environment and Heritage, State of the Environment 2006 Data Reporting System,
‘Number of Indigenous Heritage Places listed in the National Heritage List (NHL) as at 31 December 2005’
webpage, http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html (accessed 13 April
2011).
(b) Source: July 2011 data - Search conducted of the National Heritage Database for field ‘Class’ = Indigenous,
on the National Heritage List, http://www.environment.gov.au/cgi-bin/ahdb/search.pl (accessed 30 July 2011).
(c) Source: September 2011 data - Search conducted of the National Heritage Database for all places on the
National Heritage List, http://www.environment.gov.au/cgi-bin/ahdb/search.pl (accessed 9 September 2011).
Table 5. Number of Indigenous places on the Commonwealth Heritage List
2005 and 2011
Number of
Total number on
Indigenous places CHL
on CHL
Dec 2005
Dec 2005
New South Wales
3
105
Victoria
0
37
Queensland
0
19
Western Australia
2
21
South Australia
0
7
Tasmania
0
15
Northern Territory
1
15
Aust. Capital Territory
2
83
External Territories
0
48
TOTAL
8 (a)
350 (a)
by state or territory
Number of
Indigenous places
on CHL April 2011
6
0
0
2
5
0
8
2
0
23 (b) out of 586 (c)
(a) Source: Department of the Environment and Heritage, 2006, ‘Number of Indigenous Heritage Places listed in
the
Commonwealth
Heritage
List
(CHL)
as
at
31
December
2005’
webpage,
http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html (accessed 13 April 2011).
(b) Source: April 2011 data - Search conducted of the National Heritage Database for fields ‘Class’ = Indigenous,
on the Commonwealth Heritage List, http://www.environment.gov.au/cgi-bin/ahdb/search.pl (accessed 15 April
2011).
(c) Source: April 2011 data, Search conducted of the National Heritage Database for all places on the
Commonwealth Heritage List, http://www.environment.gov.au/cgi-bin/ahdb/search.pl (accessed 15 April 2011).
Australia ■ State of the Environment 2011 Supplementary information
43
State of Indigenous cultural heritage 2011
As of 15 April 2011, 80 additional places had been nominated to the National Heritage List,
awaiting a determination. Of these, 11 places were identified as Indigenous places. No
Indigenous places had had their nominations to the National Heritage List rejected.
Table 6. Indigenous Places nominated to the National Heritage List, as of April 2011
Indigenous place
Location
Aboriginal Tent Embassy King George Terrace
Parkes, ACT, Australia
Coranderrk 19 Barak La
Healesville, VIC, Australia
Finniss Springs Mission and Pastoral Station Oodnadatta
Marree, SA, Australia
Track
Koonalda Cave Old Eyre Hwy
Cook, SA, Australia
Kurtonitj Coustleys Rd
Tyrendarra, VIC, Australia
Moree Baths and Swimming Pool Anne St
Moree, NSW, Australia
Ngarrabullgan Mount Mulligan Rd
Dimbulah, QLD, Australia
Taroom Aboriginal Reserve 356 Bundalla Rd
Taroom, QLD, Australia
Tyrendarra Indigenous Land (Peters Property)
Tyrendarra, VIC, Australia
Wet Tropics World Heritage Area (Indigenous Values)
Cairns, QLD, Australia
Wurrwurrwuy
Yirrkala, NT, Australia
Source: April 2011 data - Search conducted of the National Heritage Database for fields ‘Legal Status’ =
Nominated Place, and ‘Class’ = Indigenous, on the National Heritage List, http://www.environment.gov.au/cgibin/ahdb/search.pl (15 April 2011).
It is noted that there is some overlap between places on the Commonwealth Heritage List
and the National Heritage List, just as there is with World Heritage listed properties. For
example, the Aboriginal Tent Embassy is currently listed on the Commonwealth Heritage
List, and has been assessed for nomination to the National Heritage List.
Following changes to the Environment Protection and Biodiversity Conservation Act 1999
(Cth) in 2003, the Commonwealth Minister for the Environment is required to ensure that at
least once in every five-year period the National and Commonwealth heritage lists are
reviewed. The first review of the lists was tabled in Parliament in the reporting period, and
includes information about the management of nationally-listed sites. The first review and
report on the National and Commonwealth heritage lists covered the period from 1 January
2004 until 30 June 2008.47
The 2008 Report on the National and Commonwealth Heritage Lists reported that of the nine
places listed for Indigenous values in 2008, only one (the Brewarrina fish traps) had a plan
that satisfies the EPBC Act. Three places were reported to have management plans in
preparation to comply with the EPBC Act: Dampier Archipelago, Lake Condah and
Hermannsburg. Three others have some form of management plan in place that does not
47
Department of the Environment and Water Resources (2008). The National and Commonwealth
Heritage
Lists
Statutory
Report
1
January
2004
–
30
June
2008,
http://www.environment.gov.au/heritage/publications/about/statutory-report04-08.html (accessed 15
April 2011).
Australia ■ State of the Environment 2011 Supplementary information
44
State of Indigenous cultural heritage 2011
currently fully comply with the Act. Two places, Wave Hill Walk-Off Route and Myall Creek
Massacre and Memorial Site, currently have no plans.48
3.6
Register of the National Estate
The Register of the National Estate (RNE) was originally established to protect heritage
under the Australian Heritage Commission Act 1975 (Cth). In 2003 the changes to the
national heritage protection system at the Commonwealth level created the National and
Commonwealth heritage lists to replace the RNE as the primary national heritage list.
Arrangements between state and territory governments and the Commonwealth government
regarding heritage management include that heritage sites on the RNE are to be transitioned
onto relevant Commonwealth or state and territory heritage registers.
The RNE was frozen on 19 February 2007, and by February 2012 all references to it in
legislation will be removed, after which time its only role will be as a public archive. 49 There
are currently more than 13,000 entries on the RNE, of which a small proportion are
Indigenous places. Of these, 193 were Indigenous places added in the reporting period prior
to the 2007 deadline.
Table 7. Total number of Indigenous places on the Register of the National Estate by state and
territory 1995 – 2011
1995
2000
2005
2011
ACT
10
27
30
NSW
208
219
222
NT
86
104
109
Qld
144
152
258
SA
143
147
155
Tas
64
65
66
Vic
101
106
123
WA
74
74
76
Total registered
830
894
1039
Total interim listed
22
19
17
-
Total
852 (a)
913 (a)
1056 (a)
1249(b)
(a) Source: Data for 1995 and 2000 from Australian Heritage Commission 2005; data for 2005 from Heritage
Division, Department of the Environment and Heritage 2005. December 2005 data, as reported in State of the
Environment 2006 Data Reporting System, Indicator NCH-02, ‘Number of Indigenous Places in Register of the
National Estate Australia 1995-2005’ Table,
http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html (accessed 13 April 2011).
(b) Source = April 2011 data- Search conducted of the National Heritage Database 15 April 2011, for Class of
‘Indigenous’ places, on the Register of National Estate, http://www.environment.gov.au/cgi-bin/ahdb/search.pl
- = data not sourced for this report
48
49
Above note 47.
Above note 46.
Australia ■ State of the Environment 2011 Supplementary information
45
State of Indigenous cultural heritage 2011
Places on the RNE do not currently receive any legal protection, other than a requirement
that the Commonwealth Environment Minister must have regard to the RNE when making a
decision under the EPBC Act that is relevant to a place on the RNE.50
A search of the RNE indicates that, as of 15 April 2011, six Indigenous places had been
destroyed in: Alice Springs (Northern Territory), Casino (New South Wales), Emita
(Tasmania), Nelly Bay (Queensland), Plumbago via Manna Hill (South Australia) and Sandy
Beach via Woolgoolga (New South Wales).
In addition, 11 other Indigenous places had been removed from the RNE. Removal from the
RNE does not necessarily indicate loss of values.51
The 2001 State of the Environment Report identified the closure of the RNE as a major
challenge to the management of Australia’s heritage, because of concerns that places on
the RNE may not be transitioned onto other registers and that the RNE was a major data
source tracking trends on the condition of Australia’s heritage.52
Correspondence with state and territory agencies undertaken for this report indicates that
most jurisdictions do not have a strategy to transition Indigenous sites on the RNE onto
other registers or report on the state of places listed on the RNE. The exceptions include
Victoria, which has transitioned all RNE listed Indigenous sites under its new Indigenous
heritage legislation, and Western Australia, which has transitioned relevant sites onto the
WA Register of Aboriginal Sites. However, it is also noted that Indigenous heritage
legislation in most jurisdictions provides for protection of places identified as Indigenous
heritage or archaeologically significant sites, and that the Indigenous places listed on the
RNE are likely to be protected in that way.
3.7
Commonwealth emergency protection for Indigenous heritage
Emergency protection from the Commonwealth Government is available for Indigenous
heritage under the EPBC Act and the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 (Cth) (the ATSIHP Act).
Under the ATSIHP Act an Aboriginal person or Torres Strait Islander person can ask the
Environment Minister to make a declaration protecting an Aboriginal area or object (including
Aboriginal remains) from injury or desecration. An emergency declaration can be made
which lasts for 30 days and which can be extended to 60 days. Applications for long-term
protection declarations may also be sought.53
50
Above note 46.
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Legal status and heritage place lists’ webpage,
http://www.environment.gov.au/heritage/ahdb/legalstatus.html (accessed April 2011).
52 Australia State of the Environment Committee (2001). Australia State of the Environment 2001,
published by CSIRO Publishing on behalf of the Commonwealth of Australia, p 92.
53 Above note 46.
51
Australia ■ State of the Environment 2011 Supplementary information
46
State of Indigenous cultural heritage 2011
The ATSIHP Act is designed to operate where protection by state or territory jurisdictions
have failed, as the Minister can only exercise her or his powers if she or he is satisfied that
state or territory law does not effectively protect the area or object.54
Applications for Commonwealth protection can be used as an indicator of threats to
Indigenous heritage and of the adequacy of state and territory protection of Indigenous
heritage, from an Indigenous perspective. Applications and determinations under the EPBC
Act and the ATSIHP Act have not been reported in previous State of the Environment
Reports.
In 2009 the Australian Department of the Environment, Water, Heritage and the Arts
reported in its Indigenous heritage law reform discussion paper that only 7% of the 320 valid
applications received since the Act commenced in 1984 had resulted in declarations.
Federal Court decisions had overturned two of the five long-term declarations that have
been made for areas.55
The period 2010 to 2011 saw a significant increase in the number of applications for
Commonwealth emergency protection, with an additional 79 valid applications.56 At the
same time there had been a slight decrease in the success of applications, with only 5% of
the 394 applications made since the Act has been in operation resulting in declarations.
54
Above note 46.
Commonwealth Department of the Environment, Water, Heritage and the Arts (2009) ‘Indigenous
heritage law reform’, discussion paper,
http://www.environment.gov.au/heritage/laws/Indigenous/lawreform/pubs/discussion-paper/index.html
(accessed 15 April 2011).
56 As of 9 August 2011, 394 valid applications had been made (as per Table 8). This includes 45 new
applications made between July 2004 and June 2010. Sources: 2004-05 and 2005-06 Annual
Reports, Department of the Environment and Heritage; 2006-07 Annual Report, Department of
Environment and Water Resources; 2007-08 2008-09 and 2009-10 Annual Reports, Department of
the Environment, Heritage, Water and the Arts, available from http://www.environment.gov.au/
(accessed 15 April 2011).
55
Australia ■ State of the Environment 2011 Supplementary information
47
State of Indigenous cultural heritage 2011
Table 8. Applications for protection under the ATSIHP Act 1984 to 2011
Number of
Number of
valid
Number of valid extensions of
applications
declarations
declarations
Number of
invalid
declarations
Section 9 (emergency
protection for areas)
220
7
4
0
Section 10 (long term
protection for areas)
143
3
0
2
Section 12 (protection
for objects)
TOTALS
31
394
8
18
0
4
0
2
Source: Data for 9 August 2011, provided by Australian Department of the Environment, Water, Heritage and the
Arts.
Notes:
An emergency declaration can be made for up to 30 days under section 9(1). Such declarations can be extended
for up to an additional 30 days under section 9(3). Some authorities (for example, Evatt, 1996) count the
extensions as if they were declarations, yielding a total of 11 declarations under section 9.
The Federal Court overturned two declarations made in 1994 to protect areas near the Hindmarsh Island (SA)
and Broome (WA). There is no provision to extend a declaration under section 10.
Six of the section 12 declarations listed were to protect the same collection of objects (the Strehlow collection)
from the same threat (being transferred out of the control of the SA Government). There is no provision to extend
a declaration under section 12.
The numbers of applications shown here are smaller than the total numbers of applications made because they
do not include applications that were invalid. The numbers of applications shown here do not correspond to the
number of individual cases under the Act because in most cases the Commonwealth received more than one
application about the same issue. One or more people can make separate applications under sections 9, 10 and
12 of the Act, and can do so repeatedly. Each valid application requires a response.
The numbers shown here are for applications made to the Commonwealth. They do not include any declarations
that may have been made by the Government of Victoria under the former Part IIA of the Act (repealed in 2006).
Australia ■ State of the Environment 2011 Supplementary information
48
State of Indigenous cultural heritage 2011
Figure 1. Applications and determinations under ATSIHPA 1984 to 2011 by type of application
Source: Data for 9 August 2011, provided by Commonwealth Department of the Environment, Water, Heritage
and the Arts.
Figure 2. Valid applications and declarations under ATSIHPA 1984 to 2011
Source: Data for 9 August 2011, provided by Commonwealth Department of the Environment, Water, Heritage
and the Arts.
Australia ■ State of the Environment 2011 Supplementary information
49
State of Indigenous cultural heritage 2011
The data suggests that there has been an increase in the identification by Indigenous
communities of threats to Indigenous heritage, and a corresponding failure by state and
territory governments to offer adequate protection.
However, it is also noted that the available data should be considered with caution.
Numerous applications can be made over one site, and the number of applications is not an
indication of the number of times the Minister has decided whether to make a declaration as
many applications have been resolved through negotiation, or were withdrawn, or were not
pursued by the applicants. The increased number of applications may also be an indicator of
increased awareness by Indigenous people of avenues to apply for emergency protection.
Two previous reviews of the ATSHIP Act, as discussed in Section 2 of this report, identified
problems with the legislation and its operation. A review of submissions made by Indigenous
groups in response to the most recent review of the ATSIHP Act indicates that there is
support for the Commonwealth maintaining an ability to offer protection where state and
territory protection has failed.57
57
For copies of submissions received in response to the review (November 2009) see Department of
Sustainability, Environment, Water, Populations and Communities, ‘Reform of Indigenous heritage
protection law – submission received’ webpage
http://www.environment.gov.au/heritage/laws/Indigenous/lawreform/submissions.html (accessed 15
April 2011).
Australia ■ State of the Environment 2011 Supplementary information
50
State of Indigenous cultural heritage 2011
3.8
State and territory Indigenous heritage registers
State and territory Indigenous heritage registers are a key source of information about the
condition and integrity of Australia’s Indigenous heritage estate.
Indigenous heritage registers are maintained by each jurisdiction and include thousands of
records of Indigenous places, objects and areas (often collectively referred to as ‘sites’).
Details of the registers established under relevant state and territory Indigenous heritage
laws are discussed in Section 2 of this report, and outlined in Appendix 2.
The number of listings on state and territory Indigenous heritage registers has been growing
strongly over the last two decades. In the most recent reporting period there was a
significant growth in listings in all but one jurisdiction, the Australian Capital Territory, as
outlined below.
Arguably one of the drivers for increased listings has been the recent legislative changes
across jurisdictions which have led to an increase in regulation in the form of stronger
requirements to record and report on the location of Indigenous heritage sites. One of the
key aims of these regulatory changes has been to increase the information available to
decision-makers responsible for determining whether and on what conditions to approve
developments that may impact on Indigenous heritage.
In interpreting the number of listings on state and territory Indigenous heritage registers it is
important to note that unlike general heritage registers, where listings of places can be
removed if heritage values are lost, Indigenous heritage registers tend to act as a historical
record of objects and sites, regardless of whether they have been destroyed. For example,
in some jurisdictions such as New South Wales sites are not removed from registers when a
permit authorising destruction has been issued. Registers also tend to include overlapping
records for places and objects.
As discussed at Section 3.3, from the data available it is difficult to create a picture of
national trends in listed Indigenous heritage across jurisdictions, as a result of: the lack of
common definitions of and criteria for listing of Indigenous heritage; changes to the
requirements for listing over the reporting period; and historic lack of reporting of detailed
information about state and territory Indigenous heritage registers. For these reasons, the
data sourced for this section of the report is provided by jurisdiction, rather than as an
aggregated national figure.
In most jurisdictions the great majority of new Indigenous heritage listings are generated
from Indigenous heritage assessments undertaken by developers.58
58
Correspondence with state and territory government agencies undertaken for this report, May-July
2011 (refer to Appendix 6). New South Wales, Queensland and Western Australia reported that the
majority of new listings are the result of development assessments. The Northern Territory reported
that new site recording are generally a result of threats to heritage as a result of development.
Australia ■ State of the Environment 2011 Supplementary information
51
State of Indigenous cultural heritage 2011
There is significant variation across states and territories as to the percentage of lands and
waters surveyed or assessed for Indigenous heritage. In 2006 in New South Wales it was
estimated that approximately 3.1% had been assessed.59 In Victoria in the period 28 May
2007 to 30 June 2011, 1190 Cultural Heritage Management Plans over areas of cultural
heritage sensitivity had been approved, representing approximately 3% of Victoria.60 In
Western Australia it is estimated that in 2011, approximately 60% of the state had been
assessed or surveyed.61
3.8.1 Australian Capital Territory
New heritage legislation came into effect in the reporting period. It deals with both
Indigenous, natural and historic heritage: the Heritage Act 2004 (ACT). This Act allows for
the preservation of both places and objects.
In 2005 it was reported that there were 2,197 Indigenous places listed on the ACT Heritage
Register.62 The new legislation led to a significant reduction of listings in the following years,
with a total of 67 Aboriginal places and objects out of 462 total heritage listings on the ACT
Heritage Register reported for June 2007. This was explained in the Australian Capital
Territory State of the Environment Report 2007 as follows:
In June 2003, at the end of the previous reporting period, 811 places and objects were
nominated, provisionally registered, or registered, including Aboriginal artefacts contained within a
place. The reduced number reflects a reduction in the large backlog of incomplete and
unprocessed nominations during the reporting period, as well as improvements in the way places
and objects are recorded.63
In 2010 to 2011 there were no further registrations or nominations of Aboriginal places or
objects to the ACT Heritage Register. Rather than systematic recording of known Aboriginal
sites in the Australian Capital Territory, the focus of listing under the new scheme is on
important sites of known condition only, noting that Aboriginal sites in the Australian Capital
Tasmania reported that literally all new listings are in response to development. See also New South
Wales Office of Environment and Heritage, New South Wales State of the Environment 2006 (Ch. 2)
http://www.environment.nsw.gov.au/soe/soe2006/ (accessed 29 August 2011).
59 Above note 58, Chapter 2.
60 Correspondence from Aboriginal Affairs Victoria, Victorian Department of Planning and Community
Development dated 28 July 2011.
61 Correspondence from Western Australian Department of Indigenous Affairs dated 29 June 2011.
62 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Indigenous places recorded by State and Territory Australia - 2000-2005’, ‘Indicator:
NCH-02 Process of listing, area and distribution of indigenous heritage listings’ webpage,
http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html
(accessed
15
March 2011).
63 Australian Capital Territory, Office of the Commissioner for Sustainability and the Environment,
ACT State of the Environment 2007,
http://www.environmentcommissioner.act.gov.au/publications/soe/2007actreport/indicators/heritage07
(accessed 13 March 2011).
Australia ■ State of the Environment 2011 Supplementary information
52
State of Indigenous cultural heritage 2011
Territory are protected under the legislation from disturbance irrespective of their status on
the ACT Heritage Register.64
3.8.2 New South Wales
Aboriginal heritage places in New South Wales can be recorded on both the Aboriginal
Heritage Information Management System (AHIMS) (which provides blanket registration)
and the New South Wales State Heritage Register (for state significant sites).
Table 9. Numbers of Indigenous sites and places on the NSW Aboriginal Heritage Information
Management System and the NSW State Heritage Register 2000 to 2011
2000
2006
2011
The number of site recordings on the 34,295 (a)
Aboriginal Heritage Information
Management System
Number of places with Indigenous
Unknown (d)
heritage values on the NSW State
Heritage Register
47,966 (b)
More than 66,000 (c)
-
13 (e)
(a) Source: Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Indigenous places recorded by State and Territory Australia - 2000-2005’, ‘Indicator: NCH-02
Process
of
listing,
area
and
distribution
of
indigenous
heritage
listings’
webpage,
http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html (accessed 15 March 2011).
(b) Source: New South Wales Office of Environment and Heritage, New South Wales State of the Environment
2006, http://www.environment.nsw.gov.au/soe/soe2006/ (accessed 29 August 2011), Chapter 2.
(c) Source: Data for March 2011, provided in correspondence with representatives of NSW Department of
Environment, Climate Change and Water (DECCW).
(d) Changes were introduced to the Heritage Act 1977 (NSW) to recognise Indigenous heritage values.
(e) Source: NSW Heritage Database Search conducted 15 April 2011, for all Statutory listed items with ‘values’ =
Aboriginal, http://www.heritage.nsw.gov.au/07_subnav_04.cfm (accessed 1 April 2011).
“-“ means no data available
3.8.3 Northern Territory
Indigenous heritage in the Northern Territory is recorded on several registers, both
Indigenous-specific and for general heritage. In 2000 there were 1,579 Aboriginal sacred
sites entered in the Northern Territory Sacred Sites Register,65 with a total of 8,839 sacred
sites recorded.66 Total 2005 and 2011 figures were not available for this report however it is
known that an additional 172 sacred sites were registered on the Northern Territory
Aboriginal Sacred Sites Register and 1,214 sacred sites recorded between July 2005 and
June 2010, as per Table 10. As of June 2011 it was also reported that there are
64
Correspondence from Heritage Unit, Office of the Commissioner for Sustainability and the
Environment, Australian Capital Territory dated 15 June 2011.
65 It is noted that the table entitled ‘Indigenous places recorded by State and Territory Australia 2000-2005’, above note 62, lists a figure of 15,373 for 2000. However, the authors of this report were
unable to confirm the source this figure. It is likely to be a combination of data held on various
Northern Territory registers.
66 Correspondence from Northern Territory Aboriginal Areas Protection Authority dated 15 June 2011.
Australia ■ State of the Environment 2011 Supplementary information
53
State of Indigenous cultural heritage 2011
approximately seven Indigenous sites on the Northern Territory Heritage Register and 8,132
on the Northern Territory Archaeological Resources Database.67
Table 10. Sacred sites registered and recorded on the Northern Territory Aboriginal Sacred
Sites Register
Financial Year
Sacred Sites Registered
Sacred Sites Recorded
2005-06
34
90
2006-07
33
181
2007-08
19
410
2008-09
39
200
2009-10
47
333
Source: Northern Territory Aboriginal Areas Protection Authority Annual Reports, as provided in correspondence
with the Northern Territory Aboriginal Affairs Protection Authority dated 15 June 2011.
The Northern Territory Aboriginal Area Protection Authority has advised that with the blanket
protection afforded to all sacred sites in the Northern Territory, additional registrations of
sacred sites (based on recorded sacred sites) occur on the basis of requests from
Traditional Custodians and on the likely risk of damage to a sacred site. There is currently a
backlog of requests for sacred sites to be registered, from which those sites most at risk of
damage are being gradually registered.
3.8.4 Queensland
There were 11,256 Indigenous places reported as being recorded by Queensland in 2000,
and 19,930 for 2005.68 This rose again to 19,958 by 31 November 2006.69 A 2011 figure was
not available at the time of writing.
Table 11. Indigenous heritage sites reported to the Queensland Government 2000-2006, each
year
2000
2001
2002
2003
2004
2005
2006
Number of Indigenous
heritage sites recorded by
consultants/researchers
and reported to the
Queensland Government 1,216
961
1,226
675
749
276
294
Source: Queensland Department of Environment and Resource Management, State of the Environment
Queensland 2007, Natural and Cultural Heritage Chapter,
http://www.derm.qld.gov.au/environmental_management/state_of_the_environment/state_of_the_environment_q
ueensland_2007/state_of_the_environment_queensland_2007_contents/index.html (accessed 11 March 2011).
67
Correspondence from Northern Territory Department of Natural Resources, Environment, The Arts
and Sport dated 7 June 2011.
68 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Indigenous places recorded by State and Territory Australia - 2000-2005’, above note
62. It is assumed that this figure refers to both the Aboriginal Cultural Heritage Database and Torres
Strait Islander Cultural Heritage Database.
69 Queensland Department of Environment and Natural Resources, State of the Environment
Queensland 2007, Natural and Cultural Heritage Chapter,
http://www.derm.qld.gov.au/environmental_management/state_of_the_environment/state_of_the_envi
ronment_queensland_2007/state_of_the_environment_queensland_2007_contents/index.html
(accessed 11 March 2011).
Australia ■ State of the Environment 2011 Supplementary information
54
State of Indigenous cultural heritage 2011
3.8.5 South Australia
There were 4,776 Indigenous places reported as being recorded by South Australia in
2000.70 There were 5,961 sites, objects and remains listed on the South Australian Register
of Aboriginal Sites and Objects in 2003 and 7,485 in 2008. 71 A 2011 figure was not available
at the time of writing.
3.8.6 Tasmania
The Tasmanian Aboriginal Site Index records Indigenous ‘relics’ relating to activity prior to
1876. The number of Indigenous ‘relics’ recorded on the Tasmanian Aboriginal Site Index
has grown steadily since 2000 to 11,267 relics in March 2011 (see Table 12). There are a
further three Indigenous sites protected by statute.72 It is also noted that the number of listed
relics includes those that have been destroyed.
Table 12. Aboriginal heritage ‘relics’ listed in the Tasmanian Aboriginal Site Index 2000 to 2011
2000
2004
2009
2011
Number of identified 8,689 (a)
9700 (b)
10,900 (b)
11,267 (c)
Aboriginal heritage
sites in the
Tasmanian Aboriginal
site index (TASI)
(a) Source: Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Number of Indigenous Heritage Places listed in the National Heritage List (NHL) as at 31
December 2005’, ‘Indicator: NCH-02 Process of listing, area and distribution of indigenous heritage listings’
webpage, http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html (accessed 13 April
2011).
(b) Source: Tasmanian Planning Commission, State of the Environment Report: Tasmania 2009,
http://soer.justice.tas.gov.au/2009/ppl/5/issue/39/ataglance.php (accessed 15 March 2011).
(c) Source: Figure for March 2011, Correspondence with Aboriginal Heritage Tasmania, Department of Primary
Industry, Parks, Water and Environment dated 16 June 2011. All listed sites are ‘relics’ under the legislation.
3.8.7 Victoria
New Indigenous heritage legislation was introduced in Victoria in the reporting period, the
Aboriginal Heritage Act 2006 (Vic), which changed requirements for reporting Indigenous
heritage. Previously it was reported that listed Victorian Indigenous places numbered 21,850
70
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Indigenous places recorded by State and Territory Australia - 2000-2005’, above note
62. It is not known what databases this figure refers to, and no 2005 figure was published.
71 South Australia Environment Protection Authority, State of the Environment for South Australia
Report 2008, http://www.epa.sa.gov.au/soe_resources/report/heritage.pdf (accessed 15 March 2011).
72 Correspondence from Aboriginal Heritage Tasmania, Department of Primary Industry, Parks, Water
and Environment dated 16 June 2011.
Australia ■ State of the Environment 2011 Supplementary information
55
State of Indigenous cultural heritage 2011
in 2000 and 28,497 in 2005.73 This rose to 32,559 Indigenous heritage place and object
registrations on the Victorian Aboriginal Heritage Register at the end of June 2011.74
3.8.8 Western Australia
The number of listed ‘Aboriginal places’75 on the Western Australia Aboriginal Site Register
increased significantly over the reporting period from 21,812 in 2005 to 30,145 in 2011 (see
Table 13). By far the largest contribution to the increase in listings is through knowledge of
Aboriginal heritage gained from information provided as part of development processes.76
Table 13. Western Australia Listed Aboriginal places 2000 to 2011
2000
2005
2007
Western Australia 14,180 (a)
21,812 (a)
22,134 (b)
Aboriginal Site
Registers Listings
2011
30,145 (c)
(a) Source: Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Number of Indigenous Heritage Places listed in the National Heritage List (NHL) as at 31
December 2005’, ‘Indicator: NCH-02 Process of listing, area and distribution of indigenous heritage listings’
webpage, http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html (accessed 13 April
2011).
(b) Source: Western Australia Environmental Protection Authority, State of the Environment Report: Western
Australia 2007, http://www.soe.wa.gov.au/report/heritage.html (accessed 16 March 2011).
(c) Source: Correspondence with Western Australian Department of Indigenous Affairs dated 28 July 2011.
3.9
Authorised harm and destruction of Indigenous heritage
Indigenous heritage is continually impacted by development.77 The issuing of development
approvals, permits and consents to harm or destroy Indigenous heritage is a highly
contentious issue, and in many jurisdictions is an ongoing source of conflict between
Indigenous communities and government agencies.78
73
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Indigenous places recorded by State and Territory Australia - 2000-2005’, above note
62. Which databases or registers this information relates was unable to be confirmed at the time of
writing, but is likely to have referred to heritage listings on the Victorian Aboriginal Heritage Registers
which refers to places and objects.
74 Above note 60.
75 The Western Australia Aboriginal Site Register lists ‘Aboriginal places’ only. There is no distinction
made between places and objects.
76 Above note 61.
77 Above note 64.
78 See Case Study: Biamanga (New South Wales) included in this report as Attachment 1. See also
examples of recent media regarding conflict over planned or approved development including:
O'Brien, K., 18 July 2011, 'Iron and Dust: The story behind the stalled negotiations that could create
one of Australia's biggest mining projects', ABC Four Corners, transcript available at
http://www.abc.net.au/4corners/special_eds/20110718/mining/ (accessed 30 July 2011); Ogilvie, F.,
15 April 2011, 'Aborigines step up bypass protest' in ABC News, http://www.abc.net.au/news/201104-14/aborigines-step-up-bypass-protest/2615844 (accessed 12 May 2011); 11 December 2011,
'Miner runs up against ancient art on city's edge December 11' in Sydney Morning Herald,
http://www.smh.com.au/nsw/miner-runs-up-against-ancient-art-on-citys-edge-20101210-18swr.html
(accessed 12 May 2011).
Australia ■ State of the Environment 2011 Supplementary information
56
State of Indigenous cultural heritage 2011
Indigenous heritage laws in Australia contain provisions for a Minister, or in some cases
another body, to authorise harm or destruction of Indigenous heritage. For details of consent
provisions across jurisdictions see Appendix 2.
Although there are some variations across jurisdictions, the common process is for an
application to be made by a developer or other person planning to undertake an activity
which may harm Indigenous heritage, to the relevant agency, and for the agency to require
that an Indigenous heritage assessment be undertaken by the applicant before a consent or
permit is issued.
Consultation with relevant Indigenous groups before a permit or consent is issued is
generally required, with arrangements varying across jurisdictions.
There are limited public data published by state or territory agencies regarding how many
and to whom permits or consents are issued authorising harm or destruction of Indigenous
sites. The authors of this report are not aware of any long-term studies that assess the
cumulative impact on Indigenous heritage of the historic approvals of Indigenous heritage.
The number of permits and consents varies significantly across jurisdictions. From the
limited data available it appears that:
 permits and consents issued often include conditions to minimise or mitigate harm to
sites, permits and consents generally authorise harm to multiple Indigenous places
and objects; and
 there is a very low level of refusal of permits in some jurisdictions.
Data included below are by jurisdiction.
3.9.1 New South Wales
A public register of Aboriginal Heritage Impact Permits (or AHIPs), which authorise harm or
destruction to Aboriginal heritage objects and places, has been published by the New South
Wales Office of Environment and Heritage since November 2010.
Previous estimates of the number of AHIPs issued (or ‘section 87’ and ‘section 90’ consents
as they were previously known) are that between 2004 and 25 May 2009 approximately 958
permits and consents were issued, or a rate of five per week.79 Generally AHIPs include
both provisions to harm or destroy, salvage and manage multiple Indigenous places or
objects.
79
Figures compiled from Questions on Notice recorded on NSW Parliamentary Hansard, as quoted in
NSW Aboriginal Land Council (2009). Respect and Protect, submission to the Commonwealth
Department of the Environment, Water, Heritage and the Arts in response to the Indigenous heritage
law reform discussion paper, August 2009,
http://www.environment.gov.au/heritage/laws/Indigenous/lawreform/submissions.html (accessed 15
April 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Most recently the rate of issue of permits has reduced, with less than 100 permits recorded
on the public register for the nine months since November 2010.80 It is also noted that
permits issued since November 2011 are generally for a longer period than two years, to
accommodate stages of development which would have previously required multiple permit
applications. Approximately 95 to 97% of permit applications are approved.
3.9.2 Northern Territory
There have been approximately 12 applications to disturb prescribed Indigenous
archaeological places and objects in the reporting period. The Northern Territory Department
of Natural Resources, Environment, The Arts and Sport has advised that most applications
are made with the consent of Traditional Owners.81
3.9.3 Tasmania
The rate of issue of permits in Tasmania has remained steady. Between 2001 and 2005 it
was reported that 131 permits were issued,82 with different impacts. In 2009, 30 permits
were issued,83 while in 2010 26 permits were issued, for the purpose of authorising a
development based impact.84
3.9.4 Victoria
In Victoria there has been a move away from the reliance on permits in land-use and
development activities, as they cannot be used if a Cultural Heritage Management Plan is
not in place.
In the period 28 May 2007 to 30 June 2011, the following numbers of permits were issued:
 19 to disturb or excavate any land for the purpose of uncovering or discovering
Aboriginal cultural heritage;
 139 to carry out an activity that will, or is likely to, harm Aboriginal cultural heritage,
including management activities;
 40 to buy or sell an Aboriginal object;
 seven to carry out scientific research on an Aboriginal place (including the removal of
Aboriginal objects from that place for the purpose of that research); and
 two to remove an Aboriginal object from Victoria.85
80
New South Wales Office of Environment and Heritage, 'Details of approved AHIPs and other AHIP
related matters' webpage, http://www.environment.nsw.gov.au/licences/ntheastahipregister.htm
(accessed 31 July 2011).
81 Above note 67.
82 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
table entitled ‘Indigenous places recorded by State and Territory Australia - 2000-2005’, ‘Indicator:
NCH-02 Process of listing, area and distribution of Indigenous heritage listings’,
http://www.environment.gov.au/soe/2006/publications/drs/indicator/230/index.html
(accessed
15
March 2011).
83 Aboriginal Heritage Tasmania, ‘FAQ’ webpage, http://www.aboriginalheritage.tas.gov.au/faq.html
(accessed 1 April 2011).
84 Above note 72.
85 Above note 60.
Australia ■ State of the Environment 2011 Supplementary information
58
State of Indigenous cultural heritage 2011
3.9.5 Western Australia
Under the Aboriginal Heritage Act 1972 (WA), a person who owns a piece of land on which
an Aboriginal site is located, and wants to develop or use that land, must apply for consent
from the Minister for Indigenous Affairs to do so under section 18 of the Act.
The Western Australia Aboriginal Material Cultural Committee considers applications from
landowners to use land on which Aboriginal sites and objects are located. The Committee
then recommends to the Minister for Indigenous Affairs whether consent should be given to
use the land for the purpose sought. In making his decision the Minister will consider the
broader community interest including revenue generation or employment opportunities from
the proposed development. If the Minister consents, conditions may be attached to the use
of the land.
Table 14. Western Australia, section 18 applications and decisions 2001 – 2006
2006
2007
2004
2003
2002
2001
section 18 applications to impact
Aboriginal heritage sites received
section 18 applications referred
back to proponent
section 18 approvals (includes
conditional consent) by the
Aboriginal Cultural Material
Committee and Minister for
Indigenous Affairs
section 18 applications declined
by the Aboriginal Cultural
Material Committee and minister
for Indigenous Affairs
81
86
99
91
73
57
10
4
7
17
12
14
62
76
89
75
61
44
0
0
1
0
0
0
Source: Western Australia Environmental Protection Authority, State of the Environment Report: Western
Australia 2007, http://www.soe.wa.gov.au/report/heritage.html (accessed 16 March 2011).
In the period from 1 July 2010 to 30 June 2011, the Western Australia Department of
Indigenous Affairs received 102 section 18 notices.86 Of these, 108 were considered by the
Western Australia Aboriginal Material Cultural Committee and recommendations made to
the Minister for Aboriginal Affairs.87 The Minister for Aboriginal Affairs made 81 decisions on
section 18 notices.88
The Minister for Indigenous Affairs, in making his decision on whether or not to consent to
an activity destroying Aboriginal heritage, can take into account the broader community
interest beyond the Aboriginal heritage significance of an area. This often means that the
Western Australia Aboriginal Material Cultural Committee’s recommendation not to consent
86
Above note 61.
Above note 61.
88 Above note 61.
87
Australia ■ State of the Environment 2011 Supplementary information
59
State of Indigenous cultural heritage 2011
to harming Aboriginal heritage is overruled by the Minister taking into account other matters
of interest to the government, for example revenue generation or employment
opportunities.89
3.10 Unauthorised destruction of Indigenous heritage
Some limited data are available for some states regarding unauthorised destruction of
Indigenous heritage and responses by agencies, including prosecutions for unlawful
destruction of heritage.
Information available indicates there have been a very small number of prosecutions for
unlawful Indigenous heritage, including one prosecution in Victoria since the operation of the
Aboriginal Heritage Act 2006 (Vic) and four stop work orders, an average of one
investigation per year in Tasmania per year over the reporting period and none in the
Northern Territory.90
Table 15. Queensland, Number of compliance notifications related to Indigenous cultural
heritage
Outcome
Number of cases
Successful prosecution
1
Formal warnings
2
Prosecution pending
1
Still under investigation
9
Insufficient evidence
3
Legislative exemptions
3
Stop work orders issued
6
Finalised, no further action taken
54
Total
79
Source: Queensland Department of Environment and Natural Resources, State of the Environment Queensland
2007, Natural and Cultural Heritage Chapter,
http://www.derm.qld.gov.au/environmental_management/state_of_the_environment/state_of_the_environment_q
ueensland_2007/state_of_the_environment_queensland_2007_contents/index.html (accessed 11 March 2011).
89
90
Above note 61.
Above notes 60, 67 and 72.
Australia ■ State of the Environment 2011 Supplementary information
60
State of Indigenous cultural heritage 2011
The State of the Environment Report Queensland 2007 also provides useful data about
other impacts on Indigenous heritage including some unauthorised impacts.
Table 16. Number, proportion and type of human-related impacts on Indigenous sites reported
to the Queensland Government, 2002-03 to 2005-06
2002-3
Number
of sites,
and %
of total
sites
reported
2003-4
Number
of sites,
and %
of total
sites
reported
2004-5
Number
of sites,
and %
of total
sites
reported
2005-6
Number
of sites,
and %
of total
sites
reported
Vandalism
8
1.19
4
0.53
3
1.09
1
0.34
Camping
97
14.37
8
1.07
1
0.36
2
0.68
Foot traffic
9
1.33
14
1.87
5
1.81
3
1.02
Vehicular traffic
63
9.33
50
6.68
17
6.16
10
3.40
Mining
17
2.52
8
1.07
4
1.45
3
1.02
Pastoral
178
26.37
153
20.43
35
12.68
6
2.04
Other development 233
34.52
102
13.62
30
10.87
12
4.08
Total sites reported 675
749
276
294
Source: Queensland Department of Environment and Natural Resources, State of the Environment Queensland
2007, Natural and Cultural Heritage Chapter,
http://www.derm.qld.gov.au/environmental_management/state_of_the_environment/state_of_the_environment_q
ueensland_2007/state_of_the_environment_queensland_2007_contents/index.html (accessed 11 March 2011).
3.11 Repatriation Programs
Repatriation is a major issue for Indigenous communities in relation to moveable Indigenous
cultural property. A focus of government activity in recent years has been the repatriation of
sacred objects and human remains. A large number of Indigenous cultural objects and
human remains were taken from Indigenous communities, or from locations where they had
been placed by Indigenous communities, in the 19th and 20th centuries. Thousands of items
were sent overseas to museums and scientific institutions throughout Europe and
elsewhere, and others were kept in Australian museums and universities.91
Indigenous communities have advocated strongly for the return of what was taken.
Returning human remains is particularly important for Indigenous people, to allow the spirits
91
Truscott, M. C. (2006). Repatriation of Indigenous cultural property, paper prepared for the 2006
Australian State of the Environment Committee,
http://www.environment.gov.au/soe/2006/publications/emerging/repatriation/index.html (accessed 15
March 2011).
Australia ■ State of the Environment 2011 Supplementary information
61
State of Indigenous cultural heritage 2011
of those ancestors, the land and the communities from which they were taken to be at
peace.
The two key Commonwealth repatriation programs are Return of Indigenous Cultural
Property (RICP) program and the International Repatriation Program.
The RICP program aims to return Aboriginal and Torres Strait Islander ancestral remains
and secret or sacred objects held in eight major government-funded museums to their
communities of origin where possible and when requested. Since it was established in 2001,
the program has supported the return of more than 1,400 ancestral remains and 1,380
secret sacred objects to Indigenous communities.92
The International Repatriation Program facilitates the return of Aboriginal and Torres Strait
Islander ancestral remains held in overseas collections to their communities of origin. Over
1000 ancestral remains have been returned to Australia since 2000. It is estimated that there
are currently around 900 Aboriginal and Torres Strait Islander remains held in overseas
collections, most being held in the United Kingdom, Germany, France and the United States
of America.93
The Commonwealth Office for the Arts continues to advance the key intentions of the Prime
Ministerial Joint Statements on Human Remains, released by the Prime Ministers of
Australia and the United Kingdom in July 2000, and the Prime Ministers of Australia and Italy
in 2009.94 These statements reflect the positive commitments of the respective governments
to facilitating the return of Aboriginal and Torres Strait Islander ancestral remains from public
collecting institutions in the United Kingdom and Italy.95
3.12 Other programs and funding
The primary Commonwealth funding vehicle for Indigenous heritage is the Indigenous
Heritage Program (formerly the Preservation and Protection of Indigenous Heritage
Programme run by Aboriginal and Torres Strait Islander Services until 2004). In July 2004
the program was transferred to the Department of Environment and Heritage and is now the
responsibility of the Department of Sustainability, Environment, Water, Population and
Communities. The level of funding through this program was steady in the reporting period.
92
Commonwealth Department of the Environment, Water, Heritage and the Arts, Annual Report
2009-10,
http://www.environment.gov.au/about/publications/annual-report/09-10/outcome5.html
(accessed 29 August 2011).
93 Commonwealth Office for the Arts, Department of Prime Minister and Cabinet, ‘International
Repatriation
Program’
webpage,
http://www.arts.gov.au/funding-support/grants-fundingopportunities/Indigenous-arts/international-repatriation-program (accessed 1 April 2011).
94 Above note 93.
95 Above note 93.
Australia ■ State of the Environment 2011 Supplementary information
62
State of Indigenous cultural heritage 2011
Table 17. Commonwealth funding of the Indigenous Heritage Program 2004-05 to 2010-11
Name of Program
2004-05
Number of
applications for
funding
-
Total amount of
funding sought
Total amount of
funding
granted
$3.3 million
Number of
projects funded
Preservation and
63
Protection of Indigenous
Heritage Program
2005-06
Indigenous Heritage
143
<$12 million
$3.5 million
<60
Program
2006-07
Indigenous Heritage
122
<$11 million
$3.7 million
60
Program
2007-08
Indigenous Heritage
130
$6.8 million
$ 3.5 million
unknown
Program
2008-09
Indigenous Heritage
126
unknown
$3.576 million
57
Program
2009-10
Indigenous Heritage
141
unknown
$3.3 million
50
Program
2010-11
Indigenous Heritage
unknown
unknown
$2.79 million
41
Program
Source: Commonwealth Department of the Environment and Heritage annual reports 2004-05 and 2005-2006;
Commonwealth Department of the Environment and Water Resources annual report 2006-07 and
Commonwealth Department of the Environment, Water, Heritage and the Arts annual reports 2007-08, 2008-09
and 2009-10, http://www.environment.gov.au/about/publications/annual-report/index.html (accessed 29 August
2011). Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Indigenous
heritage
Program
–
funding
outcomes
2010-2011’
webpage,
http://www.environment.gov.au/heritage/programs/ihp/outcomes-10-11.html (accessed 29 August 2011).
3.13 Comments and recommendations
There were a number of positive trends in the reporting period indicating improved protection
of Indigenous moveable and immoveable heritage. This includes the trend for increased
listings of Indigenous heritage, which was identified in previous State of the Environment
Reports.
Also importantly, the last five years has seen expanded requirements for Indigenous
heritage assessments, stronger requirements to consider Indigenous heritage in
development consents and more regional planning to identify Indigenous heritage has been
undertaken.
However, the management of moveable and immoveable Indigenous cultural heritage
remains a highly contested area, and a continued focus of advocacy for change by
Indigenous people. As discussed in Section two, current Australian laws and policies fall
short, with some exceptions, of recognition of the right of Indigenous people to refuse
consent to development which will impact on significant cultural heritage. Opposition by
Australia ■ State of the Environment 2011 Supplementary information
63
State of Indigenous cultural heritage 2011
Indigenous people to approved developments on the basis that significant harm will be
caused to important Indigenous heritage has continued in the reporting period.96
The high rate of applications for emergency protection of Indigenous heritage and the high
number and rate of authorised destruction of Indigenous heritage through permits and
consents in some jurisdiction is a concern. There is a need for an automatic link to elevate
Indigenous heritage values from the state level to the national level. There is also little to no
information or measurement of the cumulative impact of past and continued approved
destruction of Indigenous heritage.
With new listings for Indigenous heritage driven primarily by cultural heritage assessments
undertaken for potential developments, further research is needed to determine whether the
trends towards increased recognition and listing of Indigenous heritage is, in fact, an
indicator of improved protection of Indigenous heritage in Australia. It is recommended that
this research be a priority for future State of the Environment Reporting.
It is also strongly recommended that consultation be undertaken with key Indigenous
heritage bodies and other heritage stakeholders to establish an appropriate framework for
assessing and aligning data from state and territory Indigenous heritage registers, along with
requirements for standard reporting of state data for future State of the Environment
Reports.
This framework should include a strategy for establishing clearer baseline data against
which trends in the condition of Indigenous sites on state and territory Indigenous site
registers in future State of the Environment Reports can be reported. In particular, a
mechanism is needed to indicate destruction of sites and removal of places from state and
territory Indigenous cultural heritage registers to monitor the state of Indigenous cultural
heritage.
96
See for example: Murdoch L., 24 May 2010, 'Kakadu being poisoned by Rio Tinto mine, group
warns' in Brisbane Times, http://www.brisbanetimes.com.au/national/kakadu-being-poisoned-by-riotinto-mine-group-warns-20100523-w42y.html (accessed 12 May 2011); Om, J., 3 March 2011,
'Aboriginal
clan
blocks
Lake
Eyre
sailors'
in
ABC
Radio,
transcript
at
http://www.abc.net.au/am/content/2011/s3153723.htm (accessed 12 May 2011); Manning, P., 28 May
2011, 'Kimberley coast shapes up as crucial battleground' in Sydney Morning Herald,
http://www.smh.com.au/business/kimberley-coast-shapes-up-as-crucial-battleground-201105271f8fw.html (accessed 31 May 2011); O'Brien, K., 18 July 2011, 'Iron and Dust: The story behind the
stalled negotiations that could create one of Australia's biggest mining projects', ABC Four Corners,
transcript available at http://www.abc.net.au/4corners/special_eds/20110718/mining/ (accessed 30
July 2011); Ogilvie, F., 15 April 2011, 'Aborigines step up bypass protest' in ABC News,
http://www.abc.net.au/news/2011-04-14/aborigines-step-up-bypass-protest/2615844 (accessed 12
May 2011); and 11 December 2011, 'Miner runs up against ancient art on city's edge December 11' in
Sydney Morning Herald, http://www.smh.com.au/nsw/miner-runs-up-against-ancient-art-on-citysedge-20101210-18swr.html (accessed 12 May 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
4.
Land, water and biodiversity
4.1
Introduction
Land is the foundation of the lives and cultures of Indigenous peoples all over the world…
Without access to and respect for their rights over the lands, territories and natural resources,
the survival of Indigenous peoples’ particular distinct cultures is threatened. 97
Chairperson, United Nations Permanent Forum on Indigenous Issues
Non-Indigenous Australians consider water as spiritual, natural resources and a commodity
that is not only essential to livelihood, but has significant economic contemporary value.
However Indigenous groups in many of these ecologically rich and often remote
environments regard the inlands waters, rivers, wetlands, sea, islands, reefs, sandbars and
sea grass beds as an inseparable part of their estates. As well as underpinning social and
economic wellbeing, Indigenous peoples’ relationship with waters, lands and its resources is
crucial to cultural vitality and resilience. 98
Native Title Report 2008
Biodiversity erosion is a serious concern for us – Indigenous peoples – because the loss of
flora, fauna, and microorganisms and the destruction of ecosystems are not just physical
losses. This also means the loss of Indigenous knowledge systems, cultures, languages, and
our identities. Our very survival as peoples and cultures rests on how well we have conserved
and sustainably used the biodiversity and ecosystems in our territories. 99
Chairperson, United Nations Permanent Forum on Indigenous Issues
Land, water and biodiversity are tangible elements of Indigenous cultural heritage.
Therefore, for the purposes of comprehensively reporting against indicator NCH-07 Physical
condition and integrity of Indigenous cultural heritage, it is relevant to consider their physical
condition and the integrity of Indigenous cultural values associated with them.
The physical condition of land, water and biodiversity in Australia is, however, addressed
against separate SoE indicators that are outside the scope of this report. We do not propose
to reiterate that information in this section but acknowledge and emphasise that pressures
affecting land, water and biodiversity are also pressures affecting the state of Indigenous
cultural heritage.
97
United
Nations
Permanent
Forum
on
Indigenous
Issues,
Sixth
Session,
http://www.un.org/News/Press/docs/2007/hr4917.doc.htm (accessed 9 September 2011).
98 Aboriginal and Torres Strait Islander Social Justice Commissioner (2008). Native Title Report 2008,
Australian Human Rights Commission,
www.hreoc.gov.au/social_justice/nt_report/ntreport08/pdf/chap6.pdf (accessed 9 September 2011).
99 Tauli-Corpuz, V. (2009). ‘The importance of Indigenous peoples in biodiversity conservation’,
Environment Matters 2009, The World Bank Group,
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/ENVIRONMENT/EXTENVMAT/0,,menuPK:3
011413~firsttime:true~pagePK:64168427~piPK:64168435~theSitePK:3011351,00.html (accessed 9
September 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
The condition and integrity of Indigenous cultural heritage places are also inherently linked
to the issue of Indigenous control of land, waters and biodiversity-related natural resources.
This is recognised in international instruments to which Australia is a party, including the
Convention on Biological Diversity and the UN Declaration on the Rights of Indigenous
People, and increasingly in Australian legislation, policies and strategies.
Indigenous control of lands and waters is a reasonable sub-indicator of the ‘integrity’ of
associated cultural values – it being assumed that Indigenous people can fulfil their
customary obligations to care for country and ensure observance of customary laws where
they are in control.
Access to land, water and biodiversity is an important part of maintaining or reclaiming
Indigenous cultural practices. The numbers of Indigenous people living on and accessing
traditional lands and waters (or Country) is a reasonable sub-indicator of the state of
Indigenous intangible cultural heritage (including language, traditional knowledge and
cultural practice).
Access and control of land, water and biodiversity is also closely linked to the health and
wellbeing of Indigenous people.100 A number of the Indigenous stakeholders interviewed for
this report emphasised this connection:
Every Aboriginal person is a Traditional Owner somewhere. When Aboriginal people connect
with their Country they get a real sense of pride and identity, which is really positive.101
Deputy Chair, Victorian Aboriginal Heritage Council
4.2
Condition and key trends
4.2.1 Recognition of relationship between access to Country, Indigenous
health and cultural vitality
There has been an increase in formal and informal recognition by policy makers of the
connection between heritage, culture and Country for Indigenous peoples. The 2001
Australia State of the Environment Report noted this as an emerging trend, which had not
yet filtered into policy making. As discussed in earlier sections of this report, including in
100
See for example: Putnus, A., Josif, P. and Woodward, E. (2007). Healthy Country, Healthy People:
Supporting Indigenous Engagement in the Sustainable Management of Northern Territory Lands and
Seas: A Strategic Framework, CSIRO, Canberra; Centre for Aboriginal Economic Policy Research,
People on Country, Healthy Landscapes and Indigenous Economic Futures Research Project,
http://caepr.anu.edu.au/poc/index.php (accessed 11 April 2011); and recent and current research
projects of the Australian Institute of Aboriginal and Torres Strait Islander Studies, ‘Research at
AIATSIS’ webpage, http://www.aiatsis.gov.au/research/about.html (accessed 11 April 2011).
101
Denise Lovett (Deputy Chair, Victorian Aboriginal Heritage Council) telephone interviews between
March and May 2011.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
relation to recent changes to legislation, there is now widespread acceptance of this
connection, along with the connection between cultural, natural and historic heritage
generally.
4.2.2 Closing the Gap
The connection between access to Country and Indigenous health is now generally
accepted by Australian policy makers, and is reflected in a wide range of new policies
developed in the reporting period.102
4.2.3 Increase in the proportion of Indigenous-owned and Indigenouscontrolled land
The proportion of Indigenous-owned and Indigenous-controlled lands increased in the
reporting period, with significant increases in the number of Indigenous Protected Areas
(IPA), areas of land under Native Title agreements, and an increase in other forms of
Indigenous land holdings.
Virtually all Indigenous-owned and Indigenous-controlled lands (more than 90%) continued
to be located in remote and very remote areas of Australia.
4.2.4 Increased proportion of Indigenous-controlled waters
The proportion of Indigenous-controlled waters increased, with two significant decisions
recognising Indigenous water rights: the High Court decision in Northern Territory of
Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29 (Blue Mud Bay decision)
under the Aboriginal Lands Rights Act 1976 (NT); and the Federal Court decision in Akiba
on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of
Queensland (No 2) [2010] FCA 643 (Torres Strait Regional Seas Claim) under the Native
Title Act 1993 (Cth).
The Blue Mud Bay decision recognised that Yolngu people in north-east Arnhem Land and,
by extension, all Aboriginal people in the Northern Territory have exclusive rights over tidal
waters along Aboriginal lands. Traditional Owners may now exclude commercial fishing
102
See for example: Commonwealth Department of Sustainability, Environment, Water, Populations
and Communities, ‘Cultural and Social Benefits’ webpage,
http://www.environment.gov.au/indigenous/ipa/cultural.html (accessed 13 April 2011); Commonwealth
Department of Families, Housing, Community Services and Indigenous Affairs (2010, 2011). Closing
the Gap: Prime Minister’s Report,
http://www.fahcsia.gov.au/SA/INDIGENOUS/PUBS/CLOSING_THE_GAP/Pages/default.aspx
(accessed 29 August 2011); Australian Government Productivity Commission (2011). Overcoming
Indigenous Disadvantage Reporting: Key Indicators 2011,
http://www.pc.gov.au/gsp/reports/indigenous/key-indicators-2011 (accessed 29 August 2011) which
includes key land indicators relating to land access and control; and Commonwealth Department of
Health and Aging, (2008). Aboriginal and Torres Strait Islander Health Performance Framework –
2008 Report, http://health.gov.au/internet/main/publishing.nsf/Content/health-oatsih-pubs-framereport
(accessed 29 August 2011).
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along over an estimated 80% of the Northern Territory coast and intertidal rivers. While the
Torres Strait Regional Seas Claim concluded by formally recognising Native Title rights in
the seas of the Torres Strait.
4.2.5 Increased Indigenous contribution to the National Reserve System
Indigenous-controlled lands are making an increasingly important contribution to Australia’s
system of protected areas, the National Reserve System, with Indigenous-controlled
protected areas comprising an increasing proportion and number of protected area lands.
There is an increasing trend to create joint management arrangements with Indigenous
people over protected areas, especially national parks.
4.2.6 Increased funding support to manage Country
There have been increasing levels of Australian government funding support for Indigenousowned lands and Indigenous involvement in managing Country in the reporting period. In
relation to Indigenous-controlled protected areas, financial support has primarily been
through the Commonwealth’s Indigenous Protected Areas (IPA) program,103 as well as
funding in some states and territories for jointly-managed national parks and some other
programs.
The Great Barrier Reef Marine Park Authority also received a large funding allocation to
support the development of Traditional Use of Marine Resources Agreements (TUMRA)
across the Great Barrier Reef Marine Park catchment.
4.2.7 Equitable funding?
The increasing financial support for Indigenous land holders in the reporting period needs to
be considered against the significantly increased number of commitments adopted by
Indigenous people entering conservation agreements over their traditional lands. These
conservation agreements limit some options of Indigenous people regarding how that land is
used or developed in the future.
While such conservation arrangements can meet both Indigenous people’s commitments to
caring for Country and governments’ commitments to conservation, it is important that a
disproportionate burden is not placed on Indigenous people to help Australia meet its
national and international environmental obligations.
This is particularly the case, as Indigenous people remain the most economically
disadvantaged group in Australia. Disadvantage is strongest in remote and very remote
Australia, which is also where Indigenous people have most land holdings and are
responsible for the largest protected areas.104 In such remote areas, Commonwealth
programs can be the primary or sole source of employment for Indigenous communities.
The IPA program is part of the Commonwealth’s Caring for Our Country program.
See Australian Government Productivity Commission (2009). Overcoming Indigenous
Disadvantage: Key Indicators 2009, http://www.pc.gov.au/gsp/reports/Indigenous/keyindicators2009
(accessed 13 April 2011).
103
104
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For these numerous reasons, it is important that government funding reflects the contribution
that Indigenous people make to the preservation of Australia’s natural and cultural heritage
estate through their land holdings, and that funding adequately supports the activities being
undertaken by the Indigenous community, and builds capacity for future Indigenous
conservation land management.
The loss of the Community Development Employment Program (CDEP) in the reporting
period is noted as a potential risk to Indigenous-controlled protected areas. A number of
Indigenous communities relied on CDEP to support Working on Country programs and in the
absence of adequate replacement programs to provide funding for essential equipment,
vehicles and office support, the loss of CDEP is a major concern.105
4.2.8 Increasing recognition of water issues and cultural water flows
Previous Australia State of the Environment Reports have reported on Indigenous access to
land, but not water or natural resources to a significant extent. During the reporting period,
water became the focus of increasing attention by both Indigenous advocates and policy
makers.
Indigenous rights in water are not adequately recognised by Australian law and policy,106
and governments across Australia are only in the early stages of formally recognising
Indigenous relationships with water for spiritual, cultural and economic purposes.107
One of the key findings of the National Water Commission report Australian Water Reform
2009: Second biennial assessment of progress in implementation of the National Water
Initiative (2009 NWI Biennial Assessment) was that Indigenous economic, cultural and
spiritual interests should be more effectively incorporated into water plans.108 There are also
conflicts over the priorities for directing the use of water, particularly in regional areas.109
105
See discussion of the IPA program in Hunt, J. (2010). Looking after Country in NSW: Two Case
Studies of Socioeconomic Benefits for Aboriginal People, CAEPR Working Paper 75/2010, Australian
National University.
106 See, for example, the Australian Government ‘s National Water Initiative (NWI). The NWI allows
for access to, and management of, water by Indigenous people. However, while the NWI ensures that
Native Title rights are recognised, recognition and provision of other Indigenous water rights and
priorities are discretionary.
107 Australian Government National Water Commission, ‘Indigenous Water Management’ webpage,
http://www.nwc.gov.au/www/html/273-Indigenous-water-management.asp (accessed 29 August
2011).
108 Australian Government National Water Commission (2009). Australian Water Reform 2009:
Second Biennial Assessment of progress in implementation of the National Water Initiative,
http://www.nwc.gov.au/www/html/147-introduction---2009-biennial-assessments.asp?intSiteID=1
(accessed 29 August 2011).
109 See, for example, high profile ‘Wild Rivers’ conflict in Cape York Peninsula where the Archer
Basin, Lockhart Basin and Stewart Basin have been declared ‘Wild Rivers’ for the purposes of
conservation which has brought the declarations into conflict with the economic and cultural
aspirations of some Traditional Owner groups.
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4.2.9 Increased involvement of Indigenous people in water planning
Major developments in the period include the National Water Commission’s Indigenous
Water Policy Group and the recently established First Peoples' Water Engagement Council.
The Indigenous Water Policy Group provides research-based policy advice on water reform
initiatives as they affect Indigenous communities and their land holdings, while the First
Peoples’ Water Engagement Council the Commission's Indigenous advisory council.
4.2.10 Increased use of Indigenous access and use agreements
Across jurisdictions there was a trend towards agreements recognising access and use of
land, water and cultural resources over defined areas, by Traditional Owners. This includes
the Commonwealth government’s Sea Country Planning Program. It is also noted that such
agreements are often linked to or based on Native Title.
4.2.11 Increased statutory recognition of Indigenous peoples rights to access
and use natural resources
As previously discussed, there is a trend towards increased positive statutory recognition of
Indigenous rights to access and use traditional resources.110 This replaces past approaches
where Indigenous people’s rights tended to be limited to the ability to gain an exemption
from licensing requirements (such as fishing), or defences against prosecution on the basis
of Aboriginality and/or engaging in traditional cultural practices.
4.3
Assessing and reporting on the state of land, water and
biodiversity
This section provides data related to indicator NCH-07 Physical condition and integrity of
Indigenous cultural heritage. In particular, data that indicates levels of Indigenous control
and ownership of land and water. The data are grouped under Indigenous people living on
Country; joint management and co-management; Native Title; and the Indigenous Protected
Areas program.
Although the quality of information about Indigenous access and control over traditional
lands, water and biodiversity is increasing, data to report trends are very limited. The
reporting in sections 4.4 – 4.8 below is based on readily available public data, with a focus
on updating land data as reported in previous SoE Reports. While this section notes some of
the issues and trends around water and biodiversity, the collection of data to report against
these was outside the resources for this project.
110
See, for example, the Fisheries Management Act 1994 (NSW) which was recently amended to
recognise ‘Aboriginal cultural fishing’ (section 4) and the Fisheries Management Act 2007 (SA) which
recognises ‘Aboriginal traditional fishing’ (section 3(1)).
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4.4
Indigenous-owned and Indigenous-controlled land
Indigenous people own or control land in Australia in a variety of ways, including through
Native Title, joint management of national parks, Aboriginal land rights legislation, purchase
and through initiatives such as the Indigenous Land Corporation.
In 2008 it was estimated that:
 Indigenous-owned or Indigenous-controlled land comprised 17.3% of the area of
Australia;
 Indigenous-owned or Indigenous-controlled land comprised 23.3% of the land area of
very remote areas of Australia in 2008, but only 0.1% of inner regional areas and 0.2%
of major cities;
 nearly all (97.8%) Indigenous-owned or Indigenous-controlled land was in very remote
areas of Australia;
 the bulk of Indigenous-owned or Indigenous-controlled land was in the Northern
Territory (49.5%), Western Australia (28.9%) and South Australia (15.4%); and
 Indigenous-owned or Indigenous-controlled land made up 48.8% of the Northern
Territory, but less than 1% of the area of New South Wales, Victoria, Tasmania and
the Australian Capital Territory.111
It is difficult to estimate the size of the increase in Indigenous land holdings, with estimations
of what constitutes ‘Indigenous-controlled’ land varying in past SoE reports. Trends in the
growth of two types of Indigenous land holdings are discussed below in section 4.6 and
section 4.7.
4.5
Indigenous people living on Country
Since the 1990s, a decreasing proportion of Indigenous people live on Country.112 In 2008,
one-quarter (25%) of Indigenous people aged 15 years and over were living on Country.
Indigenous people living in remote areas were almost five times more likely to live on
Country than those who lived in the major cities (44% and 9% respectively).113
It is also noted that cultural identification by Indigenous people is increasing, which has
helped drive the ongoing demand for access and control of Country. In 2008, 62% of
Indigenous people aged 15 years and over identified with a clan, tribal or language group,
compared to 54% in 2002.114 In 2008, 49% of Indigenous children aged four to 14 years
111
Above note 104, at 8.2.
Above note 104, Chapter 10 and Tables 10A2.1-10.2.3.
113 Australian Bureau of Statistics (2008). 4714.0 - National Aboriginal and Torres Strait Islander
Social
Survey,
http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/4714.0Main%20Features52008?opendo
cument&tabname=Summary&prodno=4714.0&issue=2008&num=&view=#PARALINK2 (accessed 11
April 2011), ‘Languages and Culture’ summary.
114 Above note 113, ‘Languages and Culture’ summary.
112
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identified with a clan, tribal or language group.115 Rates of identification were higher for
children living in remote areas than in major cities (71% and 40% respectively).116
4.6
Joint management and co-management
‘Joint management’ refers to arrangements between Indigenous communities and
government agencies relating to management of protected areas. A joint management
arrangement can range from formal hand-back of land, to agreements to involve Aboriginal
people in particular aspects of protected area management, such as management of the
cultural sites. These arrangements are also sometimes referred to as ‘co-management’.
Nationally, the first protected area to be handed back to Indigenous control was Kakadu
National Park, which recently celebrated its 25th anniversary.
In addition to jointly managed protected areas that are supported by the Commonwealth
Government, there are a growing number of joint management arrangements being
developed in various states and territories under differing legislative schemes. National data
are not available regarding the percentage of protected areas that are jointly managed with
Indigenous people. However, research indicates that there are an increasing number of joint
management arrangements across Australia, in some cases linked with Native Title.117
Recent research into joint management by the Australian Institute for Aboriginal and Torres
Strait Islander Studies indicates that the success of jointly-managed protected areas
depends on a range of factors, including that successful partnerships must be negotiated
locally to meet local needs and must involve Indigenous people in meaningful decisionmaking roles.118
The research also found that the policy context in each jurisdiction was significant:
Typically, where legal recognition of Aboriginal rights to traditional lands is strong, protected
area joint management arrangements provide for significant Aboriginal involvement in
decision-making, accompanied by rights to live within and use resources of protected areas,
albeit subject to provisions of plans of management. Where such legal recognition is weak or
unresolved, Aboriginal input into decision-making tends to be advisory only and rights to living
areas and resource use highly constrained. 119
Above note 113, ‘Languages and Culture’ summary.
Above note 113, ‘Languages and Culture’ summary.
117 Bauman, T. and Smyth, D. (2007). Indigenous Partnerships in Protected Area Management in
Australia: Three case studies, Australian Institute of Aboriginal and Torres Strait Islander Studies in
association with the Australian Collaboration and the Poola Foundation (Tom Kantor fund), Canberra,
p 9.
118 See various reports available on the AIATSIS Joint Management Research Project page at
http://www.aiatsis.gov.au/ntru/jointmanagement.html (accessed 13 April 2011).
119 Above note 118.
115
116
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4.7
Native Title
Native Title recognises Indigenous communal rights over traditional lands and waters,
including associated natural and cultural resources. The level of control and management
which different groups have been able to exercise under Native Title varies. Also
development and past land grants have effectively extinguished Native Title in significant
parts of Australia, particularly the eastern states.
The number of Native Title agreements significantly increased over the reporting period, with
the 500th Indigenous Land Use Agreement (ILUA) signed in March 2011.120 The percentage
of Australian land and waters over which Native Title was determined to exist in full or part
doubled in the reporting period, from 4.7% in 2004 to 11.1% in 2008.121
Types of Native Title agreements which can be made include the rights to: use or access an
area, including the natural resources associated with that area; restrict others from
accessing that area; or determine the management of that area. However, data are not
readily available to help analyse the nature of this title, such as the percentage of
agreements related only to access as opposed to control or benefit sharing.
The annual Native Title Reports prepared by the Aboriginal and Torres Strait Islander Social
Justice Commissioner have tracked some positive developments in Native Title in the
reporting period, but have also consistently highlighted issues with Native Title processes,
including the long and protracted timeframes for the recognition of Native Title, insufficient
support for Indigenous claimants to pursue claims through the Native Title process and the
shortfall between Australia’s Native Title processes and Australia’s international human
rights obligations.122
4.7.1 Australian lands and waters subject to Native Title
While the number of successful Native Title claims and ILUA grew steadily over the reporting
period, the average length of time between the lodgement of Native Title claims and their
resolution remained significant, with a number of claims taking more than 10 years to
resolve.
As of 31 December 2010, nationally there were:
 458 applications for recognition of Native Title.
National Native Title Tribunal, ‘Milestone for Native Title Agreements’, Media Release, 31 March
2011, http://www.nntt.gov.au/News-and-Communications/MediaReleases/Pages/Milestone_for_native_title_agreements.aspx (accessed 13 April 2011).
121 Above note 104, at 8.2.
122 Australian Human Rights Commission, ‘Index of Native Title Reports’ webpage,
http://www.hreoc.gov.au/social_justice/nt_report/index.html (accessed 13 April 2011). In particular see
Australian Human Rights Commission (2009). Native Title Report 2009,
http://www.hreoc.gov.au/social_justice/nt_report/ntreport09/chapter1.html (accessed 13 April 2011),
Chapter 1: The state of land rights and Native Title policy in Australia in 2009.
120
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 145 Native Title ‘determinations’,123 covering 1,086,253 square kilometres of the
Australian landmass (about 14.1%) (see Table 18).
 There were 470 registered ILUAs. Registered ILUAs cover 1,155,375 square
kilometres (about 15%) of the Australian landmass and 5167 square kilometres over
sea (below the high water mark). 124
Table 18. Percentage of Australia subject to Native Title
2004
2006
Percentage of Australia over which Native Title has been
determined to exist (%)
Area of land subject to Indigenous Land Use
Agreements (‘000 ha)
2008
2010
4.7%(a)
8%(b)
11.1%(c)
14.1%(d)
366(a)
620(b)
1,007(c)
1,115(d)
(a) Figure for June 2004. Source: Australian Government Productivity Commission (2005). Overcoming
Indigenous Disadvantage: Key Indicators 2005, http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2005
(accessed 29 August 2011), at 11.27.
(b) Figure for June 2006. Source: Australian Government Productivity Commission (2007). Overcoming
Indigenous Disadvantage: Key Indicators 2007, http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2007
(accessed 29 August 2011).
(c) Figure for June 2008. Source: Australian Government Productivity Commission (2009). Overcoming
Indigenous Disadvantage: Key Indicators 2009, http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009
(accessed 29 August 2011).
(d) Figure for December 2010. Source: National Native Title Tribunal, ‘National Native Title in Australia: A
National Perspective’ webpage, http://www.nntt.gov.au/Native-Title-In-Australia/Pages/National-Perspective.aspx
(accessed 13 April 2011).
4.7.2 Distribution of Native Title
Queensland is the state with the largest number of Native Title determinations, and Western
Australia is the state over which the largest percentage is subject to a Native Title
determination (see Figure 3). Almost all land over which Native Title has been determined to
exist is classified as remote or very remote.
Queensland is also the state with by far the largest number of ILUA (273), followed by the
Northern Territory (99), Western Australia (49), South Australia (47), Victoria (39) and New
South Wales (9) (see, Figure 4).125
Each determination of Native Title is different. A ‘Determination’ can range from recognition of
exclusive rights over the entire claimed area, to recognition of limited rights over part of the claimed
area, to a determination that Native Title does not exist in the claimed area.
124 National Native Title Tribunal, ‘National Native Title in Australia: A National Perspective’ webpage,
http://www.nntt.gov.au/Native-Title-In-Australia/Pages/National-Perspective.aspx (accessed 13 April
2011).
125 National Native Title Tribunal, Search the Register of Indigenous Land Use Agreements,
http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-RegisteredILUAs/Pages/Search.aspx (accessed 29 August 2011).
123
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Figure 3. Map of Native Title determinations, Australia
Source: National Native Title Tribunal, Successful and Unsuccessful Claims and Determinations Map, current as
of 31 December 2011, http://www.nntt.gov.au/Publications-And-Research/Maps-and-SpatialReports/Pages/National-Maps.aspx#iluas (accessed 13 April 2011).
Figure 4. Map of Indigenous Land Use Agreements, Australia
Source: National Native Title Tribunal, Indigenous Land Use Agreements Map, current as of 31 December 2011,
http://www.nntt.gov.au/Publications-And-Research/Maps-and-Spatial-Reports/Pages/National-Maps.aspx#iluas
(accessed 13 April 2011).
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Figure 5. Map of Claimant Applications as per the Register of Native Title Claims
Source: National Native Title Tribunal, Areas where Native Title has been determined or a current claimant group
which has passed the registration test, current as of 31 December 2011, http://www.nntt.gov.au/PublicationsAnd-Research/Maps-and-Spatial-Reports/Pages/National-Maps.aspx#iluas (accessed 13 April 2011).
4.8
Indigenous Protected Areas program
An Indigenous Protected Area (IPA) is an area of land and/or waters over which the
Traditional Owners have entered into a voluntary agreement with the Commonwealth
government to protect the biodiversity and cultural values of the area.126
Indigenous Protected Areas are managed by Traditional Owners with financial and other
forms of support from the Commonwealth government and, in some cases, state and
territory governments. Indigenous Protected Areas can only be established on Indigenousowned or Indigenous-controlled lands.127
The IPA program has grown strongly since its introduction in 1997. The most recent
evaluation of the program in 2006 hailed it as the nation's most successful innovation in
126
Commonwealth Department of Sustainability, Environment, Water, Populations and Communities
(2010). Fact Sheet: What is an Indigenous Protected Area?,
http://www.environment.gov.au/Indigenous/publications/pubs/Indigenous-protected-area.pdf
(accessed 13 April 2011).
127 ‘Indigenous-owned land’ refers to land owned under Native Title, Aboriginal land-rights legislation
or acquired through purchase. ‘Indigenous-controlled land’ refers to Indigenous-owned lands as well
as lands which may be owned by other parties, but are controlled by Indigenous people (such as
jointly-managed national parks).
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Indigenous conservation, with broad support from Indigenous communities, government and
other sectors.128
The Indigenous Protected Areas program – 2006 Evaluation (2006 IPA Evaluation) also
found that in addition to important biodiversity and conservation outcomes, the IPA program
delivered significant other benefits, for both communities and governments, in line with a
range of Australia’s national and international commitments to protect the environment and
address Indigenous disadvantage. The 2006 IPA Evaluation found that:
 95% of IPA communities reported economic participation and development benefits
from involvement with the IPA program;
 60% of IPA communities reported positive outcomes for early childhood development
from their IPA activities;
 85% of IPA communities reported that IPA activities improve early school engagement;
 74% of IPA communities reported that their IPA management activities make a positive
contribution to the reduction of substance abuse; and
 74% of IPA communities reported that their participation in IPA work contributes to
more functional families by restoring relationships and reinforcing family and
community structures.129
While the IPA program has enjoyed increasing annual funding from the Commonwealth,
financial support has not kept pace with the large numbers of IPAs being established. This
raises questions about whether the highly successful IPA program provides equitable
benefits to Indigenous people, compared to funding for other types of protected areas.
4.8.1 Location of Indigenous Protected Areas in Australia
In 2011 there were 42 Declared IPAs, with a significant number of consultation programs
and research being undertaken to further the development of additional IPAs. This can be
compared to 22 Declared IPAs in 2006.130 A map showing the locations of IPAs throughout
Australia is shown in Figure 6.
Indigenous Protected Areas have been established in all states and territories, with the
largest areas being established in remote areas primarily within the Northern Territory,
Western Australia and South Australia.
128
Gilligan, B. (2006). The Indigenous Protected Areas Program - 2006 Evaluation,
www.environment.gov.au/Indigenous/publications/ipa-evaluation.html (accessed 13 April 2011),
129 Commonwealth Department of Sustainability, Environment, Water, Populations and Communities,
The Indigenous Protected Areas program - 2006 Evaluation Webpage,
http://www.environment.gov.au/Indigenous/publications/ipa-evaluation.html (accessed 13 April 2011).
130 Above note 128.
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Figure 6. Map of Indigenous Protected Areas in Australia
Source: Commonwealth Department of Sustainability, Environment, Water, Populations and Communities, Map
of Indigenous Protected Areas: March 2011,
http://www.environment.gov.au/Indigenous/ipa/declared/pubs/map.pdf (accessed 13 April 2011).
4.8.2 Indigenous Protected Areas as a percentage of Australia’s National
Reserve System
Indigenous Protected Areas make an increasingly significant contribution to Australia’s
efforts towards biodiversity conservation. They form the second largest component of the
National Reserve System, covering nearly 3% of Australia. In 2008, IPAs covered 2.68% of
Australia, compared with 1.79% in 2004.
In the reporting period, IPAs not only grew significantly in number and in total area of land,
but also as a proportion of Australia’s National Reserve System (see Table 19). In 2004,
IPAs constituted 17% of the National Reserve System. While in 2008 this proportion had
risen to 20.8%.
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Table 19. Indigenous Protected Areas compared with total Terrestrial Protected Areas in
Australia – Number and Area (hectares)
Indigenous Protected
Areas
Total Terrestrial Protected
Areas in Australia
2004
Number
19
2004
Area (ha)
13,799,114
2006
Number
20
2006
Area (ha)
14,594,415
2008
Number
25
2008
Area (ha)
20,592,227
7,720
80,895,099
8,870
89,528,859
9,219
98,487,116
Source: Collaborative Australia Protected Area Database (CAPAD), 2004, 2006 and 2008 (current) Editions,
National Summary Terrestrial Protected Areas, http://www.environment.gov.au/parks/nrs/science/capad/
(accessed 13 April 2011).
4.8.3 Expenditure on Indigenous Protected Areas
Funding through the national Caring for Our Country Program for IPAs has steadily
increased since the establishment of the program, including in the reporting period. 131
Comparable data were sought from the Commonwealth to provide an update for 2006-7,
2007-8, 2008-9, 2009-2010 and 2010-2011, but not received in time to be included in this
report.
However, the level of funding increases has not kept pace with the increased number and
area of Declared IPAs, leading to a decrease in relative operational funding. This trend
towards decreased operational funding was reported in 2006 Australia State of the
Environment Report,132 and highlighted in 2006 IPA Evaluation. The 2006 IPA Evaluation
found that:
By any criteria, the IPA Program has been very cost effective in contributing to the
conservation aims of the National Reserve System program. However, many submissions to
the evaluation raised questions about the lack of assured funding for ongoing management of
IPAs and what this means for the status of reserves as part of a national system.133
Indigenous Protected Areas rely heavily on volunteer or low-paid labour by Indigenous
people, as well as their traditional knowledge regarding effective management of the land
and waters. While the Working on Country Program provides funding for training and
employment to manage IPAs,134 further data are needed to determine whether the funding is
adequate, particularly following the end of CDEP.
131
Commonwealth Department of Sustainability, Environment, Water, Populations and Communities,
Map of Indigenous Protected Areas: March 2011,
http://www.environment.gov.au/Indigenous/ipa/declared/pubs/map.pdf (accessed 13 April 2011).
132 Lennon, J. et al (2001). Above note 7, p 27.
133 Above note 123, p 3.
134 Commonwealth Department of the Environment, Water, Heritage and the Arts (2008). Working on
Country Fact Sheet,
http://www.environment.gov.au/Indigenous/publications/pubs/workingoncountry.pdf (accessed 13
April 2011).
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4.9
Comments and recommendations
The existing State of the Environment Report indicator framework needs to be reviewed, in
consultation with Indigenous heritage bodies and practitioners, to assess how the land,
water and natural resource access and use can be reported in future SoE Reports. Ideally,
indicators relating to these issues should be integrated with the Indigenous cultural heritage
indicators.
The 2006 SoE Report reported on the percentage of land subject to ‘traditional land uses’ by
Indigenous people. Further information was sought by the authors about how this
information was compiled, and how ‘traditional uses’ were defined with the aim of reporting
this measure in 2011, but this information was not received in time for inclusion in this report.
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5.
Intangible cultural heritage (languages,
practices and traditional knowledge)
5.1
Introduction
cultural
Section 3 and section 4 of this report have focused on Indigenous tangible culture heritage,
namely moveable and immoveable cultural property and land, water and biodiversity. In
these sections passing references have been made to Indigenous intangible cultural
heritage, particularly in relation to understanding the ‘integrity’ of cultural heritage values
associated with tangible cultural heritage.
This section reports on the state of Indigenous intangible cultural heritage, including
Indigenous languages, cultural practices and traditional knowledge. The focus is on
Indigenous languages, as NCH-24 Use of Indigenous Languages is a priority indicator for
this report.
This section also includes reflections and insights into the nature of intangible Indigenous
cultural heritage and the importance of integrating understandings of intangible Indigenous
cultural heritage into future State of the Environment reporting.
5.1.1 Nature of Indigenous intangible cultural heritage
Indigenous people view the world they live in as an integrated whole. The lands, waters,
biodiversity, culturally significant sites and objects are linked with the traditional knowledge,
practices and expressions that relate to them. Traditional knowledge lies at the heart of
Indigenous culture and identity. The individual members of every Traditional Owner group
derive their distinct cultural identities from the body of traditional knowledge that has been
handed down to the members of that group by previous generations.
Traditional knowledge is inextricably linked to the environment, because it is knowledge that
has evolved over thousands of years through Indigenous people’s interaction with their
environment:
Small-scale societies with a history of continued and unchallenged occupation of given
territories will over time tend to develop and maintain detailed and accurate knowledge about
their ecological niches, as well as sustainable ways of extracting and managing natural
resources. Their ways of speaking, oral traditions and verbal arts forms will transmit this
knowledge.135
All human systems and ecological systems are mutually related through human knowledge,
use and management of the environment and through the languages used to transmit this
knowledge and practice.136 Unsurprisingly then, biodiversity hotspots are also hotspots of
Maffi, L. (2002). ‘Endangered Languages, Endangered Knowledge’, 173(3) International Social
Science Journal 385–393, p 388.
136 Above note 135, p 386.
135
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cultural diversity.137 For example, Australia’s Wet Tropics region is recognised on the World
Heritage List as an outstanding example of Earth’s biodiversity, and is also home to 18
Traditional Owner groups.
The territories of Indigenous people contain some of the richest biodiversity on the planet.138
It is important to recall these territories include Indigenous traditional knowledge systems
that relate to biodiversity conservation and use. Loss of biodiversity in these territories
represents not only the physical loss of flora, fauna and micro organisms (or Indigenous
tangible cultural heritage) it also means the loss of Indigenous knowledge systems, cultures,
languages and identities (or Indigenous intangible cultural heritage). Biodiversity loss is
therefore a significant pressure on Indigenous intangible cultural heritage.
Over time, Indigenous knowledge systems have developed customary laws, which govern
people’s relationships with their environment and with the rest of humanity. Ensuring
observance of customary law is an important for maintaining the integrity of Indigenous
culture and a means to preventing loss of traditional knowledge through disuse.
Traditional knowledge is manifested through practices (including fishing, hunting, gathering,
traditional land management, ceremony, customary legal punishment, kinship and ways of
organising social life and application of traditional medicine) and expressions (including
language, song, dance, art, theatre, film, narrative and story telling).
Traditional knowledge is maintained through its use and application. It is transmitted by
Indigenous people from one generation to the next through practices and expressions, as
part of expressing their cultural identity. Protecting and promoting cultural practice and
expressions of culture (especially languages and creative expression) are important for the
maintenance of traditional knowledge.
5.1.2 Values of Indigenous intangible cultural heritage
Indigenous intangible cultural heritage is intrinsically and extrinsically valuable. Two such
values are explored in (a) and (b) below.
(a) Cultural resources
Indigenous intangible cultural heritage is a significant cultural resource, vital to Indigenous
people’s economic and social development. Cultural resources are the foundation of
Indigenous identity and are associated with social and emotional wellbeing. Cultural
resources such as traditional knowledge and Indigenous languages also contribute to
economic development through the lucrative tourism and fine art industries, as well as other
niche industries such as translation services for government and businesses interacting with
Slikkerveer, L. J. (1999). ‘Ethnoscience, “TEK” and its Application to Conservation’ in Posey, D.
(ed) Cultural and Spiritual Values of Biodiversity, United Nations Environment Programme,
Intermediate Technology Publications, London, p 227.
138 Posey, D.A. (1999). ‘Introduction: Culture and Nature - the Inextricable Link’ in Posey, D. (ed)
Cultural and Spiritual Values of Biodiversity, United Nations Environment Programme, Intermediate
Technology Publications, London.
137
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Indigenous communities. Indigenous traditional knowledge is also widely used in the
development of new medicines and food products.
Cultural resources also have valuable, though as yet not fully harnessed, applications in
terms of the conservation and sustainable use of biological resources at the local level.
(b) Supporting cultural resilience, cultural diversity and social resilience
Maintaining and protecting Indigenous intangible cultural heritage is a vital aspect of cultural
resilience. According to UNESCO, ‘cultural resilience’ refers to a culture’s capacity to
maintain and develop cultural identity and critical cultural knowledge and practices.139
Cultural resilience, in turn, contributes to maintenance of cultural diversity. Cultural diversity
is important for humanity as a whole because it plays a major role in creating mechanisms
for innovation.140 Cultural diversity provides new ways to adapt to change, articulates
traditional knowledge and creates institutions to deal with the challenges, opportunities and
threats posed by change.141
The mechanisms for innovation created by cultural diversity are a vital aspect of social
resilience. According to UNESCO, ‘social resilience’ refers to the amount of change a
human system can undergo and still retain the same controls on function and structure; the
degree to which the system is capable of self-organisation; and the ability of that human to
build and increase the capacity for learning and adaptation.142
The concept of ‘social resilience’ is drawn from ideas and evidence about the important link
between biodiversity and ecosystem resilience. In ecology, ‘resilience’ refers to the capacity
of an ecosystem to tolerate disturbance without collapsing into a qualitatively different state
that is controlled by a different set of processes.143 A resilient ecosystem can withstand
shocks and rebuild itself when necessary. There is growing evidence to link high levels of
biodiversity with increases in the resilience of ecosystems.144
5.1.3 Values of Indigenous languages
The loss of languages is a loss of cultural wealth for all humanity. Language loss is
intrinsically tied to loss of cultural diversity, as languages embody cultural knowledge
(traditional, spiritual, ecological, social) and are the means of transmitting culture to the next
generation.
139
United Nations Educational, Scientific and Cultural Organisation (2007). Links Between Biological
and Cultural Diversity, report of the International Workshop organised by UNESCO with support from
the Christensen Fund, unesdoc.unesco.org/images/0015/001592/159255e.pdf (accessed 29 August
2011), p 21.
140 Above note 139, p 22.
141 Above note 139, p 22.
142 Above note 139, p 21.
143 Above note 139, p 21.
144 Above note 139, p 21.
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Aside from promoting cultural diversity, the protection and promotion of Indigenous
languages has other significant benefits for Indigenous people and Australian society:
 Strong language and culture are associated with resilience and better health outcomes
for Indigenous people;
 Bilingualism enhances cognitive development in infants;
 Indigenous languages increase employment opportunities for Indigenous people;
 Indigenous language and culture is an important component of Australia’s tourism
industry, which consumes more than $70 billion in Australian goods and services;
 Indigenous cultural knowledge has assisted scientists in understanding parts of climate
change. Indigenous languages are the medium through which this knowledge has
been passed down over millennia; and
 The loss or denial of language and culture can have negative impacts on Indigenous
people.145
5.2
Condition and key trends
Prior to colonisation there were an estimated 250 Indigenous languages across the country.
Today there are just 145, most of which are no longer fluently or fully spoken. Indigenous
language loss in Australia must be viewed in the broader context of global language-loss
trends. The United Nations Educational, Scientific and Cultural Organisation (UNESCO)
estimates that at least 43% of the estimated 6000 languages spoken in the world are
endangered,146 and that worldwide language disappearance is rapid and accelerating. It is
estimated that if nothing is done, 50% of the world’s languages will disappear by the end of
this century.147
Language loss appears to have continued throughout the reporting period. While there are
no new comprehensive language data, such as the National Indigenous Languages Survey
Report 2005 (NILS 2005) available for the reporting period, Indigenous language
stakeholders contacted for this report asserted that loss of languages is a continuing
threat.148
The ABS Census data appears to support this position, with the overall numbers of
Indigenous language speakers as a proportion of the Indigenous population declining
between the 2001 and 2006 ABS Census’.
145
Australian Human Rights Commission (2009). Social Justice Report 2009,
http://www.hreoc.gov.au/social_justice/sj_report/sjreport09/index.html (accessed 29 August 2011), p
101.
146 Moseley, C. (ed) (2010). Atlas of the World’s Languages in Danger (3rd ed) UNESCO Publishing,
Paris.
147 United Nations Educational, Scientific and Cultural Organisation, ‘Endangered Languages’
webpage, http://www.unesco.org/new/en/culture/themes/cultural-diversity/languages-andmultilingualism/endangered-languages/ (accessed 2 May 2011).
148 Interviews with the chair of the Federation of Aboriginal and Torres Strait Islander Languages on
13 April 2011 and the CEO of the Victorian Aboriginal Corporation for Languages on 6 April 2011.
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5.2.1 Intergenerational Transmission of Indigenous languages
Based on data collected in the NILS 2005, six Indigenous languages are considered ‘safe’ in
the sense that they are still spoken by all age groups including children.149 Although when
this assessment was made in NILS 2005 it was noted that three languages of these six were
showing signs of slipping into endangerment.150 While 25 languages are in varying stages of
endangerment in the sense that they are mostly spoken by parental, grandparental or greatgrandparental generations.151
5.2.2 Absolute number of speakers of Indigenous languages
Based on data collected in the NILS 2005, of the 145 Indigenous languages still spoken, 19
are considered ‘strong’ in the sense that they have more than 500 total speakers, while 46
have between 10 and 50 speakers and a further 63 have fewer than ten speakers.152
5.2.3 Official attitudes and policies towards Indigenous languages
There is no official recognition of Indigenous languages in Australia. Internationally,
language maintenance has proven most successful when the issue is elevated to be a
national concern.153
While the Commonwealth government launched a new national Indigenous languages policy
during the reporting period, the policy is not supported by Commonwealth mechanisms to
regulate state and territory Indigenous languages policy. For example, the National
Approach failed to change the NT education policy that aims to dismantle bi-lingual
education, by removing funding for these types of programs from the remaining bi-lingual
schools.154
5.2.4 Indigenous language programs
In 2009, the Commonwealth government launched a new national Indigenous languages
policy (Indigenous Languages – A National Approach 2009) aimed at protecting and
reclaiming Indigenous languages.155 However no additional funding was allocated to the
Maintenance of Indigenous Languages and Records Program to support the new policy.
The number of applications for funding under the Maintenance of Indigenous Languages
and Records Program (MILR) continues to build each year, as do the levels of funding
requested (see Table 24), as Indigenous communities are becoming more interested in
149
Australian Institute of Aboriginal and Torres Strait Islander Studies (2005). National Indigenous
Languages Survey Report 2005, published by the Department of Communications, Information
Technology and the Arts, Canberra, p 69.
150 Above note 149, p 69.
151 Above note 149, p 69.
152 Above note 149, p 69.
153 Above note 145, p 75.
154 Above note 145, p 68.
155 Commonwealth Office for the Arts, Department of the Prime Minister and Cabinet, ‘Indigenous
languages: A National Approach’ webpage, http://www.arts.gov.au/topics/indigenous-arts/indigenouslanguages-national-approach (accessed 29 August 2011).
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protecting and reclaiming language.156 Yet Commonwealth funding for Indigenous languages
under the Maintenance of Indigenous Languages Program (MILR) continues to be less than
half the level of funding sought (see Table 24).
Approximately two-thirds of MILR funding goes to language reclamation and about one-third
goes to language maintenance. In 2008-09 and 2009-10, funding failed to reach schools
where children are still speaking Indigenous languages.157 The lack of funding for language
maintenance appears to contradict the objectives of the Government’s National Approach.
A new national Indigenous television service (NITV) was launched in 2007. The focus of the
NITV is not on Indigenous language broadcasting, but it does have some language
programming. There are obvious difficulties with language broadcasting, given the number
of Indigenous languages in Australia. But NITV still fills an important role as a home for
Indigenous culture and heritage in a digital age.
The Indigenous Broadcasting Program (IBP), which funds Indigenous community radio
services, received continued support, although levels of funding are out of step with demand
(in some years demand is more than double the allocated resources) (see Table 29). A
considerable amount of programming funded by the IBP is in Indigenous languages.158
A recent review of both NITV and the IBP recommended that funding be doubled and
allocated on a triennial basis.159
More than 80 Indigenous languages are being taught in Australian primary and secondary
schools, concentrated in public schools in the Northern Territory, New South Wales,
Western Australia and South Australia. The majority of these are language reclamation
programs.160
156
Interview with the CEO of the Victorian Aboriginal Corporation for Languages (VACL) on 6 April
2011, who observed that VACL have seen an increase in the number of requests from Indigenous
community members about language revitalisation.
157 Above note 145, p 73.
158 Commonwealth Office of the Arts, Department of Prime Minister and Cabinet, ‘Indigenous
Broadcasting Program’ webpage, http://www.dbcde.gov.au/radio/indigenous (accessed 29 August
2011).
159 Stevens, N., Patton, L. and Liddle, K. (2010). Review of Australian Government Investment in the
Indigenous Broadcasting and Media Sector, published by the Office of the Arts, Department of Prime
Minister and Cabinet,
http://www.dbcde.gov.au/radio/indigenous/indigenous_broadcasting_review_2010 (accessed 29
August 2011), p 11.
160 Purdie, N., Frigo, T., Ozolins, C., Noblett, G., Thieberger, N. and Sharp, J. (2008). Indigenous
Languages in Australian Schools – A Way Forward, published by the Commonwealth Department of
Education, Employment and Workplace Relations and the Australian Council for Educational
Research,
http://www.dest.gov.au/sectors/school_education/publications_resources/profiles/Indigenous+Langua
ges+Programs+in+Australian+Schools+%E2%80%93+A+Way+Forward.htm (accessed 29 August
2011), p xi.
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5.2.5 Community members’ attitudes towards their own language
Most respondents to the NILS 2005 made positive comments about language and
expressed an interest in learning to speak it, or in having their children learn to speak it. The
NILS 2005 also noted that language reclamation movements were ‘gathering momentum in
various places’.161 Anecdotal feedback from the language stakeholders interviewed for this
report suggests that language reclamation movements have continued to build momentum
during the reporting period.
5.2.6 Proportion of Indigenous people whose main language spoken at home
is an Indigenous language
The proportion of Indigenous people speaking an Indigenous language at home has
declined at each ABS Census from 1986 and 2006. Between 1996 and 2006 the steepest
decline has been in the 15 to 24 and 45 and over age groups.
According to the 2008 National Aboriginal and Torres Strait Islander Social Survey
(NATSISS), one in nine (11.5%) Indigenous people aged 15 years and over spoke an
Indigenous language as their main language at home. This figure did not change
significantly from the figure reported in 2002 NATSISS. Indigenous people living in remote
areas in the Northern Territory, Queensland, South Australia and Western Australia were
more likely to speak an Indigenous language at home than Indigenous people living in
regional or metropolitan areas.
5.2.7 Proportion of Indigenous people who speak an Indigenous language
According to the 2008 NATSISS, two in five Indigenous people aged 15 years and over
spoke, or spoke some words of, an Indigenous language. Almost three in five Torres Strait
Islander people spoke, or spoke some words of, an Indigenous language compared to two in
five Aboriginal people.
Over one-third of Indigenous children aged four to 14 years spoke, or spoke some words of,
an Indigenous language at the 2008 NATSISS. Indigenous children living in remote areas
were more likely than those in urban areas to speak, or speak some words or, an Indigenous
language.
Indigenous people living in the Northern Territory, Queensland, Western Australia and South
Australia were much more likely to speak, or speak some words of, an Indigenous language.
5.2.8 Programs and funding related to traditional knowledge and cultural
practice
The Commonwealth Indigenous Culture Support Program (ICS) supports the maintenance
and continued development of Indigenous culture in communities. The amount of funding
sought by Indigenous communities has increased over the past four years. In 2010-11 the
161
Above note 149, p 87.
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funding sought by Indigenous people under the ICS ($29.606 million) was almost five times
the total amount of funding granted ($6.758 million).162
The cultural tourism market is building steadily with around half of all international visitors to
Australia participating in a cultural activity each day of their visit and a significant percentage
of this is Indigenous tourism.163 A number of Australian jurisdictions have developed specific
Indigenous tourism strategies, and programs to support Indigenous tourism businesses,
including at the national level the Indigenous Tourism Development Working Group.164 The
number of Indigenous tourism businesses is growing, but remains significantly underdeveloped. Over half of all Indigenous tourism businesses are located in remote or very
remote areas.165
5.2.9 Knowledge of Indigenous culture and heritage
There is greater public awareness of the diversity of Aboriginal cultures and languages than
there was 30 or 40 years ago. The launch of National Indigenous Television in 2007 has
provided a window into Aboriginal ways of life that is unprecedented in its reach.
During the reporting period the Australian Reconciliation Barometer of attitudes was
published by Reconciliation Australia. It found that the majority of Indigenous and nonIndigenous Australians felt that the relationships between Indigenous people and other
Australians was important, but that levels of trust are low. The majority of non-Indigenous
respondents had a low level of understanding about Indigenous peoples and cultures,166
although two thirds of general respondents identified that Indigenous culture is important to
Australia’s identity.
5.3
Assessing and reporting on Indigenous languages
This section considers the vitality of Indigenous Australian languages and contributes to an
assessment of SoE indicator NCH-24 – Survey of use of Indigenous languages. Use of
Indigenous languages is one of two priority indicators in the 2011 SoE report for assessing
the state of Indigenous cultural heritage.
Office for the Arts, Department of Prime Minister and Cabinet, ‘Indigenous Culture Support (ICS)
program funding recipients’ webpage, http://www.arts.gov.au/topics/indigenous-arts/indigenousculture-support/ics-funding-recipients (accessed 29 August 2011).
163 Australian Government Tourism Research Australia (2010). Indigenous Tourism in Australia:
Profiling the domestic market, Canberra.
164 See Australian Government Tourism Research Australia, ‘Indigenous Tourism Development
Working Group’ webpage,
http://www.ret.gov.au/tourism/tmc/workinggrps/indigenous/Pages/default.aspx (accessed 29 August
2011).
165 Above note 163.
166 See Reconciliation Australia and Auspoll (2010). Australian Reconciliation Barometer 2010,
http://www.reconciliation.org.au/home/reconciliation-resources/australian-reconciliation-barometer
(accessed 29 August 2011), in particular section titled ‘Comparing the Attitudes of Indigenous People
and Australians overall’.
162
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5.3.1
Sub-indicators used in this report
Sub-indicators for NCH-24 reported in previous SoE reports have focused on numbers and
proportions of speakers of an ‘Indigenous language’, using data collected by the Australian
Bureau of Statistics (ABS) in the Census and NATSISS and, since 2006, data from the NILS
2005. The NILS 2005 was a comprehensive assessment of the endangerment status of
individual Indigenous languages across the country.
The data in this section of the report focus on five of the 10 sub-indicators of the vitality
status of Indigenous languages adopted by the NILS 2005 (sections 5.5 – 5.10) and two
indicators of the state of Indigenous languages as a whole (sections 5.11 and 5.12):167
 Intergenerational Transmission of Indigenous Languages (section 5.5);
 Absolute Numbers of Indigenous Language Speakers (section 5.6);
 Official attitudes and policies towards Indigenous languages (section 5.7);
 Indigenous language programs (section 5.8);
 Community members’ attitudes towards their own language (section 5.9);
 Proportion of Indigenous people who main language spoken at home is an Indigenous
language (section 5.10); and
 Proportion of Indigenous people who speak an Indigenous language (section 5.11).
The situation of Indigenous languages in Australia is diverse and complex. According to the
NILS 2005, there are more than 145 Indigenous languages in varying degrees of
endangerment. The most relevant sub-indicators of language endangerment are those
reflecting the status of individual Indigenous languages (see sub-indicators in sections 5.5 –
5.9). Less useful sub-indicators are those reflecting the state of Indigenous languages as a
whole (sections 5.10 and 5.11), but these do provide broad context for the other data.
Six other NILS 2005 indicators which would contribute to an assessment of the state of
individual Indigenous languages are noted, but these have not reported against because
there were no data available or because of time and resource constraints on this project.
These indicators are:
 Proportion of speakers;
 Domains and functions of language use;
 Response to new domains and media;
 Materials for language education and literacy; and
 Type and quality of documentation.
167
The NILS 2005 used 10 indicators of language vitality, nine of which are indicators recommended
by UNESCO. Some of these indicators were modified for the Australian context. NILS also added one
indictor on language programs.
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5.3.2 Data sources and limitations
There are three primary sources of Indigenous language data – NILS 2005, the ABS Census
and the NATSISS.
The first comprehensive survey of the state of individual Indigenous languages was untaken
in 2005, by the Australian Institute of Aboriginal and Torres Strait Islander Studies and
Federation of Aboriginal and Torres Strait Islander Languages. The ‘National Indigenous
Languages Survey Report 2005’ (NILS 2005) was a comprehensive review of the-then
current state of Aboriginal and Torres Strait Islander language use in Australia.
Data from the NILS 2005 were relied upon in the 2006 SoE report regarding indicator NCH024. During the present reporting period there has only been the ABS Census 2006 and
NATSISS 2008, which provide useful contextual data on the status of Indigenous languages
as a whole. The NILS has not been repeated in the reporting period, although the
Government has indicated its intention to repeat the NILS in 2012.168
As at May 2011, the NILS 2005 is still the most current source of comprehensive Indigenous
language data. The NILS data is preferred to the ABS Census and NATSISS data because it
provides a more comprehensive and complex picture. The NATSISS does not include data
on individual Indigenous languages. While the ABS Census data are only available for a
selection of Indigenous languages. There are of course many other languages, many of
them endangered, that are not individually counted in the ABS Census. Whereas, the NILS
2005 surveyed and assessed 145 Indigenous languages.
Furthermore, the ABS Census data simply divides speakers (those who speak the language
at home) from non-speakers, whereas the NILS 2005 used separate scales with distinctions
between ‘speaking’ and ‘understanding’ ability and active ‘use’ of a language.
The NILS 2005 cautioned that the ABS Census age-profile data (that is, data on numbers of
numbers of Indigenous languages by age) may be unreliable because there is always some
degree of over-reporting of speaker numbers in the youngest generations.169
In any case, the 2006 ABS Census held during the reporting period did not provide agegroup figures for numbers of speakers of individual named languages. As the NILS was also
not repeated during the reporting period, we have been unable to update the
intergenerational transmission of Indigenous languages sub-indicator.
The NATSISS data is different from the ABS Census data in two key respects. First, they are
based on survey findings from a sample of Indigenous people170 and derive from different
questions on specific social issues.
168
Interview with Acting Manager, AIATSIS Language Unit on 29 April 2011. The AIATSIS language
unit confirmed that it has been funded to complete the second National Indigenous Languages Survey
in 2012.
169 Above note 149, p 70.
170 In 2008 the NATSISS sample size was in excess of 13,000.
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The NATSISS has taken place twice, once in 2002 and again in 2008. Alignment between
measures in the 2002 NATSISS and 2008 NATSISS is not always possible because some
measures were removed and others added in 2008. For example, the NATSISS collected
adult data in 2002 and 2008, but only started to collect data on children in 2008.
5.4
Assessing and reporting on intangible cultural heritage
5.4.1 Indicators used in the report
Currently, the primary indicator of the state of traditional knowledge is NCH-24 Use of
Indigenous languages. Languages are a key feature of any Indigenous traditional knowledge
system and are an obvious aspect of intangible cultural heritage to monitor and assess.
The state of Indigenous languages is a reasonable proxy indicator of the status of
Indigenous culture, in the absence of other data relating to the intangible aspects of culture
such as traditional knowledge, cultural practices and expressions of culture.171
Internationally, use of Indigenous language is also recognised as a proxy indicator for the
state of Indigenous traditional knowledge.172
The second key indicator for assessing the condition of Indigenous heritage through the SoE
is NCH-07 Condition and integrity of Indigenous cultural heritage places. Intangible cultural
heritage gives meaning to tangible cultural heritage. Indigenous cultural values associated
with an area are imposed by Indigenous knowledge systems. That is to say that sites and
areas are ‘significant’ or ‘valuable’ to Indigenous cultures because the knowledge system of
that culture assigns significance or value. Assessment of the ‘integrity’ of cultural values
associated with a cultural heritage place is in effect an assessment of the state of the
intangible cultural heritage (or traditional knowledge) associated with that place.
Cultural practices are reported to a limited extent through other SoE Indicators, which were
not with the scope of this report. These include:
 BD-07 Examples of Indigenous knowledge of species and ecological communities and
their utilisation for management by Indigenous and non-Indigenous managers and for
other purposes by Indigenous and non-Indigenous people; and
 CO-63 Estimated number of marine animals harvested by Indigenous fishers (which in
the past has considered traditional fishing trends).
171
See, Convention on Biological Diversity (2009). Report of the sixth meeting of the ad hoc openended inter-sessional working group on article 8(j) and the related provisions of the Convention on
Biological Diversity, UNEP/CBD/COP/10/2, www.cbd.int/doc/meetings/cop/cop-10/official/cop-10-02en.pdf (accessed 29 August 2011). The vitality of languages as accepted by the working group as a
reasonable proxy indicator of the status of culture.
172 See, above note 171. The working group is developing a number of indicators for traditional
knowledge and language is seen as a key element.
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While these indicators are useful, reporting has to date been limited and is not integrated
into the Indigenous heritage reporting framework.
5.4.2 International developments on indicators of the state of traditional
knowledge and cultural practices
At the international level, the Ad Hoc Open-ended Inter-Sessional Working Group on Article
8(j) and Related Provisions of the Convention on Biological Diversity (Article 8(j) Working
Group) has been working on the identification of a limited number of meaningful, practical
and measurable indicators on the status of traditional knowledge, innovations and practices,
to assess progress towards achieving the CBD’s Strategic Plan and the 2010 biodiversity
target. This work has been supported by regional and international expert workshops
organised by the Article 8(j) Working Group.
In November 2007, the International Indigenous Forum on Biodiversity organised an
International Experts Seminar on Indicators Relevant for Indigenous Peoples, the
Convention on Biological Diversity and the Millennium Development Goals. The Workshop
recommended the following to the Conference of the Parties to the CBD:173
(a) That the two indicators to be proposed to the Conference of the Parties for adoption should
be:
(i)
Status and trends of land use in Indigenous peoples territories; and
(ii)
Status and trends of traditional occupations/livelihoods;
(b) The indicators on traditional occupations should focus on occupations where knowledge of
traditional culture and practices may influence the way the work is performed;
(c) A strong gender perspective should be ensured in developing both indicators;
(d) A reference group comprising participants in the workshop should guide further work on
these indicators;
(e) The International Labour Organization (ILO), the Secretariat for the Convention on
Biological Diversity and the International Indigenous Forum on Biodiversity should
collaborate on finding resources and a consultant to be mandated with refining the
description of traditional occupations/livelihoods;
(f)
The Food and Agriculture Organization of the United Nations (FAO) should be asked to
collect data on status and trends in land (and water) use in Indigenous people’s territories;
(g) The International Indigenous Forum on Biodiversity should be asked to continue its work on
indicators.
What is clear about these international developments is that there is still some work to be
done on the development of indicators on the state of traditional knowledge, innovations and
practices. However, the developments so far are a good starting point for the Australian
173
Convention on Biological Diversity, Ad Hoc Open-Ended Inter-Sessional Working Group on Article
8(j) and related provisions of the Convention on Biological Diversity (2009). Indicators for assessing
progress towards the 2010 biodiversity target status of traditional knowledge, innovations and
practices:
Analysis
of
the
information
available
on
proposed
indicators,
UNEP/CBD/WG8J/6/2/Add.4/Rev.1, www.cbd.int/doc/meetings/tk/.../8jcsu-01-wg8j-06-02-add4-rev1en.doc (accessed 29 August 2011).
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government to begin the process of the development of indicators on Indigenous Australian
traditional knowledge for use in future SoE.
The international trends in thinking about indicators for biodiversity and Indigenous people
also recognise the link for Indigenous communities between a healthy environment, strong
culture and strong people:
The multiple crises of biodiversity loss, ecosystem destruction and overall resource depletion,
as well as climate change and the global economic crisis tell us that we cannot continue with
business as usual. This is the time to shift our thinking and ways towards a holistic
development path that is influenced by the ecosystems approach and human-rights-based
approach. There are many efforts towards developing measures of progress beyond the
gross domestic product. The Human Development Index, Happy Plant Index, and Gross
National Happiness are just a few examples. The aim of these efforts is to factor in the wear
and tear of natural capital and social costs into national systems of accounts. The shift
towards a different paradigm requires us to develop ways of measuring progress, well being,
and sustainability. This is where development of indicators comes in. 174
Chairperson, United Nations Permanent Forum on Indigenous Issues
At the national level in Australia this is reflected in programs to encourage Indigenous
people to work on Country, and the Closing the Gap strategies. It is recommended that
these factors also be considered in any re-evaluation of the SoE Reporting framework.
5.4.3 Other suggested indicators of traditional knowledge and cultural
practices
Laws, regulations and policies that recognise and enable cultural practice could be used as
an indicator of the state of traditional knowledge. A limited legislative review of these types
of provisions was undertaken for this report (see Appendix 3). It is recommended that this
review be expanded in the next SoE.
Indicators relating to the funding support the government invests in traditional knowledge
protection could be an indicator of the state of traditional knowledge. Unfortunately, there is
no single funding program for traditional knowledge. To report against this indicator,
research would be needed to uncover the various sources of funding that Indigenous people
access to support their traditional knowledge. Briefly, some of these sources would include:
 Maintenance of Indigenous Languages Program;
 Indigenous Cultural Support Program;
 Working on Country;
 Caring for Country;
 National, state and territory Environmental Trust funds;
 Indigenous Heritage Program for site related traditional knowledge; and
 Philanthropic organisations including the Australian Wildlife Conservancy.
174
Above note 100.
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A limited review of the Maintenance of indigenous Languages Program and Indigenous
Cultural Support Program has been undertaken for this report. The findings are in sections
5.8 and 5.12 respectively.
Recognition of customary law could also be used as an indicator of the state of traditional
knowledge and cultural practice. Indigenous customary laws are essential to identity and
cultural maintenance. Indigenous customary law in Australia is the body of rules, values and
traditions that are accepted by the members of an Indigenous community as establishing
standards or procedures to be upheld in that community. Customary laws may be
recognised in the following ways:
 legal recognition in Australian legislation;
 where Aboriginal people own or control land they may enforce observance of
customary law, although where customary law conflicts with Australian law, Australia
law take precedence; and
 protocols are one form of recognising Indigenous customary laws within arts and
cultural practice.
5.5
Intergenerational transmission of Indigenous languages
According to the United Nations Educational, Scientific and Cultural Organisation, the most
important indicator of language vitality is whether language is being taken up by younger
generations. A language will be lost if it is not recorded or learned by young people. As such,
‘Intergenerational Language Transmission’ is the primary language endangerment indicator
recommended by UNESCO and NILS 2005.175
Owing to the differences between the NILS 2005 data and ABS Census data, there are
different methods for analysing intergenerational language transmission from each source.
The NILS 2005 data were analysed using the NILS Intergenerational Language
Transmission Index.176 It is a slightly modified version of the index recommended by
UNESCO.177
Census data were analysed using the State of Indigenous Languages (SOIL) Language
Endangerment Index.178 The SOIL index is based on the relationship between the number of
speakers in the 0-19 years age group and the number of speakers in the 20-39 years age
group.179 If the number of speakers in the youngest age group is ‘same as’ or ‘more than’
that in the previous generation, the language is relatively healthy. If the number is less, then
it is endangered.180
175
Above note 149, p 29-30.
Above note 149, p 125.
177 Above note 149, p 125.
178 Above note 149, p 30.
179 Above note 149, p 70.
180 Above note 149, pp 30 and 70.
176
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Based on the NILS 2005 data and according to the NILS intergenerational transmission of
Indigenous language index:
 There are just six ‘strong’ Indigenous languages, three of which may have been
already endangered in 2005.
 Twenty-five Indigenous languages are at varying degrees of endangerment.
 The majority of Indigenous languages (155) are no longer fully spoken.
Table 20. Intergenerational Language Transmission – Endangerment status of languages
according to NILS index, based on NILS 2005 data
Rating Endangerment
Number of
Languages
description
languages
5
Safe
3-6
Alyawarr, Girramay,(1) Nyangumarta,
Walmajarri,(1) Walpiri, Yanyuwa(1)
4
Unsafe
0
3
Definitely endangered
2
Garrwa, Kuku Yalaji(2)
2
Severely endangered
9
Adnyamathanha, Kayardild, Kaytetye, Koko
Bera, Mudburra, Rembarrnga, Tainikuit,
Waanyi,(3) Warlmanpa
1
Critically endangered
14
Alawa, Bardi, Kalaw Lagaw Ya, Kalaw
Kawaw Ya, Lardil, Meriam Mir,
Ngarlawangka, Tjungundji, Umbindhamu,
Wajarri, Wambaya, Wangkatha, Wargamay,
Yidiny
0
No longer fully spoken
155
Source: NILS 2005.
Notes:
(1) These languages should have an ‘at least’ descriptor preceding their classification because the NILS 2005
places them in the ‘strong’ category, but this rating appears inaccurate according to other information
provided during the NILS 2005 which suggests they are in fact more endangered.
(2) This language could also be given a 2 rating as severely endangered.
(3) This language could also be given a 1 rating as critically endangered.
The NILS 2005 endangerment ratings: ‘Safe’ means the language is regularly used by all age groups, including
children; ‘Unsafe’ means the language is used by 30%–70% of the under-20 age group part of the time or in a
partial fashion, and used by the parental generation and upwards; ‘Definitely endangered’ means the language is
most used by the parental generation (20+ years) and upwards; ‘Severely endangered’ means the language is
mostly used by the grandparental generation (40+ years) and upwards; ‘Critically endangered’ means the
language is known to very few speakers, in the great-grandparental (60+ years) generation; and ‘No longer fully
spoken’ means there are no speakers left.
The endangerment ratings of 41 Indigenous languages, based on the ABS Census 2001
data and according to the SOIL Age Profile Endangerment Index, are set out in Table 21.
For comparison, Table 22 sets out the endangerment ratings of 41 Indigenous languages
based on ABS Census 1996 data and according to the SOIL Age Profile Endangerment
Index.
It should be noted that Tables 21 and 22 only include languages individually counted by the
ABS Census, and of those, several have been excluded because they were not consistently
reported across the 1996, 2001 and 2006 ABS Census’. Many languages are not individually
counted in the ABS Census, including some large and strong languages as well as some
severely endangered ones.
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The data in Tables 21 and Table 22 show that:
 There is some stability in a number of relatively ‘strong’ languages.
 The general trend is for languages to slip fairly quickly down the scale, even over a
five-year period, increasing the number of endangered languages in the sample from
14 to 23 (34% to 57%).
Table 21. Intergenerational Language Transmission – Endangerment status of languages
according to SOIL Age Profile Endangerment Index for age-group figures from the ABS
Census 2001
Rating Endangerment
Number of
Languages
description
languages
5
Strong/safe
14
Kukatha (Gugaja), Kunwinjku, Mirrinhpatha,
Nyangumarta, Pintupi, Pitjantjatjara, Walpiri,
Wik Mungkan, Yulparija, Alyawarr
(Alyawarra), Anindilyakwa, Anmatyerr
(Annmatyirra), Arrente (Arranda), Burarra
4
Unsafe
4
Maung, Tiwi, Dhuwaya/Dhuwala, Guugu
Yimidhirr
3
Definitely endangered
8
Kuurindji (Guringji), Meryam Mir, Miriwoong,
Mutpurra (Mudburra), Yankuntjatjara,
Yindjibarndi, Central Torres Strait (KKY),
Jaru (Djaru)
2
Severely endangered
10
Kidj (Gidja), Ngangkikurungurr,
Nunggubuyu, Ritharrngu, Yanyuwa (Anula)
(?), Adnymathanha (Yura Ngawarla), Bardi,
Bunuba (Bunaba), Gugu Yalinji, Karrwa
(Garrwa, Garawa)
1
Critically endangered
5
Nyungar (Noongar), Rembarrnga,
Walmajarri (Walmadjari), Warumungu
(Warumunga), Djinang
0
No longer fully spoken
0
Source: NILS 2005.
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Table 22. Intergenerational Language Transmission – Endangerment status of languages
according to SOIL Age Profile Endangerment Index for age-group figures from the ABS
Census 1996
Rating Endangerment
Number of
Languages
description
languages
5
strong/safe
18
Kija (Gidya), Kukatha (Gugaja), Kunwinjku,
Kuurindji (Gurindji), Meryam Mir, Mirriwoong
(?), Murrinhpatha, Nyungar (Noongar) (?),
Ritharrngu, Warlpiri, Alyawarr (Alyawarra),
Anindilyakwa, Anmatyerr (Anmatyirra),
Arrente (Aranda), Burarra,
Dhuwaya/Dhuwala, Guugu Yimidhirr, Jaru
(Djaru)
4
unsafe
11
Maung, Nyangumarta, Pintupi, Pitjantjatjara,
Tiwi, Warumungu (Warumunga), Wik
Mungkan, Yankuntjatjara, Yindjibarndi,
Central Torres Strait (KKY), Djinang
3
definitely endangered
4
Rembarrnga, Walmajarri (Walmadjari),
Yulparlja, Bunuba (Bunaba)
2
severely endangered
6
Mutpurra (Mudburra), Nunggubuyu(?),
Yanyuwa (Anula) (?), Adnymathanha (Yura
Ngawarla), Bardi, Gugu Yalanji
1
critically endangered
2
Ngangkikurungurr, Karrwa (Garrwa,
Garawa)
No
longer
fully
spoken
0
0
Source: NILS 2005
5.6
Absolute number of speakers of an Indigenous language
Data on the absolute number of speakers of a language are a simple indicator of language
endangerment. Using this indicator, Indigenous languages are assigned an endangerment
grading from one to five (where ‘one’ is the most endangered and ‘five’ is strong), based on
the total number of Indigenous persons who speak a particular language (referred to as the
‘speaker-number index’, see Table 23). The most endangered languages are those with
less than 10 speakers, while strong languages have upwards of 500 speakers.
According to the NILS 2005, this indicator is less accurate than intergenerational language
transmission and should be used with caution.181 To explain how this indicator may yield
inaccurate results, the NILS 2005 observed that there are some languages in the world with
more than a million speakers that may become extinct in 50 years because so few children
speak the language, while there are some very small languages of 50 to 100 speakers,
including some in Australia, that have maintained that level for hundreds of years.182
Yet absolute number of speakers is still considered a relevant indicator, at least in terms of
small languages, because small communities are more vulnerable to decimation (by
181
182
Above note 149, pp 126-127
Above note 149, p 127.
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disease, warfare or natural disaster) than larger communities and may easily merge with
neighbouring groups, losing their language and culture in the process.183
Table 23. Speaker-number index categories
Speaker-number index
Number of speakers in each speaker-number index
category
Large
>500
Grade 5
Medium
201-500
Grade 4
Small
51-200
Grade 3
Severely Endangered Grade 2
10-50
Critically Endangered Grade 1
<10
Source: NILS 2005.
The NILS 2005 estimated the number of speakers of 145 Indigenous languages that are still
spoken, using data derived from a range of sources.184 Based on the NILS 2005 estimates:
 19 languages have more than 500 speakers (13%);
 46 languages have between 10 and 50 speakers (32%); and
 63 languages have less than 10 speakers (43%).
There are also ABS Census data for absolute number of speakers for a limited number of
Indigenous languages at each Census from 1996 to 2006. While each Census reported a
number of Indigenous languages, only 37 of these languages were common to each of the
1996, 2001 and 2006 Census’. Based on the ABS Census data, Table 24 sets out the
numbers of Indigenous speakers in each speaker-index category for 1996, 2001 and 2006,
while Table 25 sets out raw speaker numbers.
183
184
Above note 149, p 127.
Above note 149, p 127.
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Table 24. Number of languages in each speaker-number index category based on ABS Census
1996, 2001 and 2006
Speaker-number
Number of Indigenous languages
index
1996
2001
2006
Large
15
17
13
Grade 5
Medium
11
6
11
Grade 4
Small
8
7
6
Grade 3
Severely
3
3
7
Endangered
Grade 2
Critically
0
4
0
Endangered
Grade 1
Source: ABS Census 1996, 2001 and 2006.
Table 25. Absolute Number of Speakers for a sample of 37 Indigenous languages commonly
reported in the 1996, 2001 and 2006 ABS Census
Language Name
1996
2001
2006
Alyawarr
Anindilyakwa
Anmatyerr
Arabana
Arrernte
Bardi
Bunuba
Burarra
Dhay'yi, nfd
Dhuwaya
Djinang, nfd
Garrwa
Gurindji
Guugu Yimidhirr
Jaru
Kalaw Kawaw Ya/Kalaw Lagaw Ya
Kija
Kukatha
Kukatja
Kuku Yalanji
Kunwinjku
Kuuku-Ya'u
Maung
Meriam Mir
Miriwoong
1,452
1,240
1,224
21
3,817
380
165
696
70
3,645
120
545
739
344
408
580
245
1,405
21
239
317
111
1,373
1,310
864
6
2,444
235
190
780
3
1,387
102
86
553
581
575
816
227
22
609
203
961
9
315
182
140
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1,664
1,283
1,002
21
2,835
152
114
1,074
118
326
178
87
592
783
353
1,216
206
25
447
360
915
13
261
212
208
99
State of Indigenous cultural heritage 2011
Mudburra
Murrinh Patha
Ngan'gikurunggurr
Ngarluma
Nunggubuyu
Nyangumarta
Pintupi
Pitjantjatjara
Rembarrnga
Ritharrngu
Tiwi
Torres Strait Creole
Torres Strait Island Languages, nfd
Walmajarri
Warlpiri
Warumungu
Wik Mungkan
Yankunytjatjara
Yanyuwa
Yindjibarndi
Yulparija
115
1,430
223
21
356
259
390
2,121
69
94
1,832
858
2,666
332
96
57
1,157
65
9
39
245
591
2,963
11
61
2,050
1,240
556
596
2,937
396
668
70
78
233
47
47
1,832
182
32
109
312
203
2,657
38
32
1,716
6,042
463
518
2,507
307
1,050
561
129
318
19
Source: ABS Census 1996, 2001 and 2006.
The data in Table 24 and Table 25 show that over the ten-year period from 1996 to 2006:
 Only two ‘large’ languages remained relatively stable throughout this period.
Anindilyakwa increased slightly in 2001 and decreased slightly in 2006, while Gurindji
continued on its positive trend with slight increases in 2001 and 2006.
 Two ‘large’ languages that experienced significant declines between 1996 and 2001
appear to have become stable, registering only slight declines between 2001 and 2006
(Kunwinjku and Walmajarri).
 Another ‘large’ language that experienced a significant decline between 1996 and
2001 increased moderately in 2006, although numbers are still below those recorded
in 1996 (Anmatyerr).
 One language that was ‘large’ in 1996 and 2001 has slipped into the ‘medium’
classification in 2006 (Kukatja).
 Alyawarr, Guugu Yimidhirr and Murrinh Patha remained ‘strong’. Despite moderate
decreases in 2001, all experienced significant increases in 2006 that surpassed the
recorded numbers of speakers in 1996d. Interestingly, Guugu Yimidhirr remained
‘strong’ despite speculation in the NILS 2005 that it would probably have slipped into
the ‘endangered’ category by 2005.
 As predicted by NILS 2005, the significant increase in Jaru speakers between 1996
and 2001 needed confirmation, with the number for 2006 returning to the 1996 level.
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 Pitjantjatjara experienced a significant increase in 2001 and a moderate decrease in
2006, but remained ‘large’.
 While remaining ‘large’, Walpiri and Tiwi both experienced moderate increases in
2001, but 2006 saw numbers decline to less than those recorded in 1996.
5.7
Official attitudes and policies towards Indigenous languages
The United Nations Educational, Scientific and Cultural Organisation has observed that
language loss is neither inevitable nor irreversible, provided there is urgent government
intervention to promote language maintenance and revival:
Well-planned and implemented language policies can bolster the ongoing efforts of speaker
communities to maintain or revitalize their mother tongues and pass them on to younger
generations.185
During the reporting period, the Commonwealth government addressed language loss by
launching a new National Indigenous Languages Policy, targeting maintenance of critically
endangered languages and promoting reclamation of unspoken Indigenous languages.186
Crucially, however, the new national policy has not been accompanied by a boost to the
Maintenance of Indigenous Languages Program (MILR) – the funding program which
underpins the National Language Policy (see Table 26). Yet demand by communities for
Indigenous-language funding has continued to build, and has outpaced the annual MILR
budget in the last three years (see Table 26).
A number of state governments are taking a proactive stance towards language reclamation,
particularly in New South Wales, Western Australia and South Australia, where there are
large numbers of school language programs.187 The Northern Territory also has a large
number of school language programs,188 although during the reporting period the Northern
Territory Government controversially withdrew funding for bi-lingual education from the
remaining bi-lingual schools, effectively spelling the end of bi-lingual education in the
Northern Territory.189
Indigenous languages have no official status in Australia. While Australia has no official
language or policy of monolingualism, the dominance of the English language has been
firmly entrenched through the legal and governance institutions of British colonisation, waves
United National Educational, Scientific and Cultural Organisation, ‘Endangered Languages’
webpage, http://www.unesco.org/new/en/culture/themes/cultural-diversity/languages-andmultilingualism/endangered-languages/ (accessed 2 May 2011).
186 Minister for the Environment, Heritage and the Arts, ‘The Importance of Australia’s Indigenous
Languages – New national approach to preserve Indigenous languages announced’, Media Release,
9 August 2009,
http://www.jennymacklin.fahcsia.gov.au/mediareleases/2009/Pages/preserve_indigenous_languages
_10aug09.aspx (accessed 29 August 2011).
187 Above note 160, p x.
188 Above note 160, p x.
189 Above note 145, p 68.
185
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of English-speaking immigrants during the twentieth century, the emergence of the US as a
super-power and the force of global technology, which has consolidated English as the
language of preference for many Western and even non-Western nations.190
In his study, Organising for Multilingualism: Ecological and Sociological Perspectives,
Joseph Lo Bianco explains why some languages are particularly at risk in globalising
economies, while other languages are strengthened:
Today, with economic globalisation, the ‘widening, deepening and speeding up of world wide
interconnectedness’…population mobility, and information/ communication technologies that
produce instantaneous links across great distances, there is great stress on communication,
and far less on diversity. As a result, some kinds of bilingualism have become strong, additive
and materially rewarded, whereas other kinds of bilingualism have become fragile, unstable
and fading. The kinds of bilingualism that have become strong and attractive tend to be those
that involve the addition of instrumentally useful languages, especially but not only English, to
uncontested national languages of secure national states.
… [T]he type of bilingualism that has been rendered unstable has been that of minority
populations, including the languages of sub-national communities in these states, such as
non-Han populations in China, Indigenous peoples in Brazil, Australia, the United States and
elsewhere…191
Indigenous Australian languages are predictably disempowered. The dominance of English
is continually strengthened and perpetuated through the Australian legal system and
governance structures, as well as through increasingly powerful media and information
technologies. Lo Bianco (2008) notes that languages that are used in education, the media,
business, commerce and international contexts have more ‘rewards’ and consequently more
power than other languages.192 As noted in the Social Justice Report 2009:
We know that Indigenous languages do not have a place of power in Australia. Indigenous
languages are rarely, if ever, the means of communication with governments, industry or the
non-Indigenous community. For example, negotiations about mining on Aboriginal land are
usually conducted in English with (or often without) interpreting or translations for Aboriginal
people. English continues to be the language of transaction in health services, in education,
in negotiations about infrastructure development and industry development on Indigenous
peoples’ land. English is the preferred language even in situations that are exclusively
concerned with Indigenous interests such as Native Title negotiations.193
The Aboriginal and Torres Strait Islander Social Justice Commissioner has suggested
constitutional recognition of Indigenous peoples and languages,194 noting that,
190
Above note 145, p 65.
Above note 1, p 1.
192 Above note 191, p 1.
193 Above note 145, p 66.
194 In Australia, constitutional recognition of Indigenous languages and culture could take two possible
forms. A statement in the preamble could describe the place of Indigenous language and culture in
Australian society, though it would have no legal or enforceable status. The Constitution of the state
191
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internationally, language maintenance has proven most successful when the issue is
elevated to be a national concern. 195
Commonwealth constitutional reform is very much on the Indigenous agenda, following
momentum generated by amendments to the Victorian and New South Sales state
constitutions recognising Indigenous people in 2004 and 2010 respectively. Official
recognition is very important to Indigenous people:
There needs to be higher official recognition of Aboriginal culture in this country. When people
come to Australia they should have to learn first hand about the Indigenous people of this
country. It doesn’t matter that there are many different cultures and languages – this diversity
should be a point of celebration, not an excuse to ignore Aboriginal people because it’s “too
hard” to teach people about all the Aboriginal languages. In the same way that when I visit
another country the custom is that I learn everything about the culture of that country and
some of the language (to make sure I’m not being disrespectful or breaking protocols) when
people come to this country they should be learning about Aboriginal culture. 196
Chair, Federation of Aboriginal and Torres Strait Islander Languages
5.8
Indigenous language programs
5.8.1 National Indigenous languages policy
In August 2009, the Federal Minister for the Arts and Minister for Indigenous Affairs
announced the first national policy exclusively focused on Indigenous languages: Indigenous
Languages – A National Approach 2009.197 The stated aims of the policy are to ‘improve
coordination between those who are already working to support Indigenous languages
including government, cultural institutions, Indigenous languages organisations, and
education and research bodies’.198 Activity is to be focused in five areas:
 Bringing national attention to Indigenous languages;
 Encouraging the use of critically endangered languages to maintain and extend their
everyday use as much as possible;
 Making sure that in areas where Indigenous languages are being spoken fully and
passed on, government recognises these languages when it interacts with Indigenous
communities;
 Helping restore the use of rarely-spoken or unspoken Indigenous languages to the
extent that the current language environment allows; and
 Supporting the teaching and learning of Indigenous languages in Australian schools.199
of Victoria makes reference to the unique status of Indigenous Australians as the first peoples, though
this has no bearing on the language rights of Indigenous Victorians (above note 140, pp 74-75).
195 Above note 145, p 75.
196 Interview with the chair of the Federation of Aboriginal and Torres Strait Islander Languages and
Culture (Corporation) on 13 April 2011.
197 Office for the Arts, Department of the Prime Minister and Cabinet, ‘Indigenous Languages – A
National Approach’ webpage, http://www.arts.gov.au/topics/indigenous-arts/indigenous-languagesnational-approach (accessed 29 August 2011).
198 Above note 197.
199 Above note 197.
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While the launch of a national Indigenous languages policy is a seemingly positive trend
towards government recognition of Indigenous languages, it must be noted that no new
money was allocated to support the policy pronouncement (see Table 26).200 When the
National Approach to Indigenous languages was announced in August 2009, the Australian
government had already committed $9.3 million to support 72 projects through the
Maintenance of Indigenous Languages and Records Program (MILR) for the 2009-10
financial year; the same money which had been dedicated to support the New Approach. 201
At that time, the Aboriginal and Torres Strait Islander Social Justice Commissioner
commented that the National Approach is unlikely to change the status quo and reverse
language decline, unless there is new money and mechanisms to regulate state and territory
Indigenous languages policy.202
The fifth objective of the National Approach is ‘supporting the teaching and learning of
Indigenous languages in Australian schools’. It is difficult to see how this objective can be
achieved without the addition of new money to the MILR program and mechanisms to
regulate state and territory Indigenous languages policy. For example, the National
Indigenous Languages Policy has failed to prevent the education policy of the Northern
Territory, which aims to dismantle bi-lingual education by removing Territory funding for bilingual education programs. Bi-lingual schools must now look to alternative sources of
funding to maintain their bi-lingual education programs.
The division between Commonwealth and state and territory policy is a major obstacle in the
implementation of a coherent direction for Indigenous languages, especially in areas such as
education. As noted by the Social Justice Commissioner in 2009, ‘cooperative federalism is
a worthy aspiration, though it is rarely a straightforward process and it is often reliant on
Commonwealth funding incentives and COAG agreements.’203
5.8.2 Maintenance of Indigenous Languages Program
The Maintenance of Indigenous Languages Program (MILR) is the Commonwealth
government’ primary program for investing in Indigenous languages.
In the financial year following the launch of the National Approach, just $7.9 million was
committed to support 63 projects through the MILR program. This was $1.4 million less than
the previous financial year, despite a 25% increase in the number of applications for MILR
funding, up from 104 in 2009-10 to 130 in 2010-11.
Over the last three years, MILR has consistently failed to meet demand for resources, with
the amount of funding sought consistently twice the value of funding allocated (see Table
26). Commonwealth under-funding of Indigenous languages is a trend, which has continued
from the first Commonwealth funding program for Indigenous languages in 1987 (the
200
Above note 145, p 68.
Above note 145, p 73.
202 Above note 145, p 68.
203 Above note 145, p 68.
201
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National Indigenous Languages Program, or ‘NALP’) through to the present funding
provided by the MILR.204
Table 26. The number of applications for funding and amount of funding sought compared to
the number of projected funded and the amount of funding granted under the Maintenance of
Indigenous Languages Program 2004-05 to 2010-11
Number of
Amount of funding Number of
Amount of
applications for
sought
projects funded funding
funding
granted
2004-05
2005-06
2006-07
2007-08
2008-09
2009-10
2010-11
Unknown
unknown
unknown
unknown
104
104
130
unknown
unknown
unknown
unknown
<$18 million
<$18 million
<$22.304 million
51
82
unknown
72
69
72
63
unknown
$8.327 million
$8.6 million
$8.88 million
$8.892 million
$9.3 million
$7.9 million
Sources:
2004-05 to 2007-08 in Purdie, N., Frigo, T., Ozolins, C., Noblett, G., Thieberger, N. and Sharp, J. (2008).
Indigenous Languages in Australian Schools – A Way Forward, published by the Commonwealth Department of
Education, Employment and Workplace Relations and the Australian Council for Educational Research,
http://www.dest.gov.au/sectors/school_education/publications_resources/profiles/Indigenous+Languages+Progra
ms+in+Australian+Schools+%E2%80%93+A+Way+Forward.htm (accessed 29 August 2011).
2008-09 to 2010-11 in Commonwealth Office for the Arts, Department of Prime Minister and Cabinet, MILR
Program funding recipients 2008-09, 2009-10 and 2010-11, http://www.arts.gov.au/topics/indigenousarts/maintenance-indigenous-languages-and-records/milr-funding-recipients (accessed 29 August 2011).
In 2010-11, the majority of projects funded by MILR were located in Queensland, the
Northern Territory and Western Australia, followed by New South Wales and South Australia
as set out in Table 27. Western Australia was received the most funding overall in 2010-11,
with over $1.8 million to support 13 projects (see Table 27 and Table 28). Victoria also
received a significantly large proportion of MILR funding for a small number of projects,
boosted by the significant allocation of triennial funding to the Victorian Aboriginal
Languages Corporation (approximately $0.5 million per annum).
204
The Commonwealth has allocated funding to Indigenous languages and education in some form or
another since 1987. The first Commonwealth funding program for Indigenous languages was the
National Indigenous Languages Program (NALP), which offered submission based annual funding
from 1987-88 to 1989-90. The Commonwealth allocated $2.5 million over three years to NALP. It is
interesting to note that a 1990 review of the NALP noted that NALP was funded by the Government at
half the level requested – $2.5 million instead of $5 million over three years. See also, above note
160.
Australia ■ State of the Environment 2011 Supplementary information
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Table 27. Number of Maintenance of Indigenous Languages and Records grants annually by
state and territory from 2008-09 to 2010-11
State
2010-11
2009-10
2008-09
Australian Capital
1
2
2
Territory
New South Wales
8
12
15
Queensland
14
10
8
Victoria
5
4
2
South Australia
8
7
6
Northern Territory
13
16
16
Western Australia
13
12
16
Tasmania
1
1
1
Source: Commonwealth Office for the Arts, Department of Prime Minister and Cabinet, MILR Program funding
recipients 2008-09, 2009-10 and 2010-11, http://www.arts.gov.au/topics/indigenous-arts/maintenanceindigenous-languages-and-records/milr-funding-recipients (accessed 29 August 2011).
Table 28. Maintenance of Indigenous Languages and Records expenditure annually by state
and territory from 2008-09 to 2010-11
State
Australian Capital
Territory
New South Wales
Queensland
Victoria
South Australia
Northern Territory
Western Australia
Tasmania
2010-11
320 000
2009-10
321 261
2008-09
329300
1 013 070
1 196 049
1 416 625
524 017
1 534 465
1 891 574
293 500
1 283 897
1 077 937
1 062 660
591 022
2 153 966
2 153 257
290 000
1 552 500
896 076
894739
355853
2 008 378
2 439 154
290 000
Source: Commonwealth Office for the Arts, Department of Prime Minister and Cabinet, MILR Program funding
recipients 2008-09, 2009-10 and 2010-11, http://www.arts.gov.au/topics/indigenous-arts/maintenanceindigenous-languages-and-records/milr-funding-recipients (accessed 29 August 2011).
The majority of Commonwealth funds from the MILR program go to regional Indigenous
languages centres, research centres or community groups.205 In 2008-09 and 2009-10 the
breakdown of the MILR funds showed that money does not go to schools where children are
still speaking languages.206 For example, no funding goes to schools in the Alyawarr,
Anmatyerre, Walpiri, Tiwi or Anindilyakwa language regions where children are still speaking
their languages.207 Many of these communities have lost funding since the abolition of
bilingual education by the Northern Territory Government.208 The lack of funding to maintain
languages still being spoken by children contradicts the second and third focus areas of the
National Approach.
205
Above note 145, p 73.
Above note 145, p 73.
207 Above note 145, p 73.
208 Above note 145, p 73.
206
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Approximately two-thirds of MILR funding goes to language reclamation and about one-third
goes to language maintenance.209 In relation to the 31 spoken languages classified as ‘safe’,
‘unsafe’, ‘definitely endangered’, ‘severely endangered’ or ‘critically endangered’ according
to the NILS intergenerational transmission of Indigenous languages index (see section 5.5),
just seven received funding in the 2010-11 financial year. These seven languages
(Nyangumarta, Yanyuwa, Garrawa, Adnyamathanha, Kayardild, Lardild and Waanyi)
collectively received approximately $401,900 of the total MILR allocation of $7.9 million, or
just over 5%.210
While it is important not to detract from the funding provided to other Indigenous languages
such as those in the process of being reclaimed, it is important to ensure that spoken
languages are adequately funded to prevent them from slipping further into endangerment.
5.8.3 Indigenous Broadcasting and Media Sector
The Commonwealth government also provides some support for Indigenous languages
through the Indigenous broadcasting and media sector. Funding is delivered through the
Indigenous Broadcasting Program (IBP) and, since its inception in 2006, National
Indigenous Television (NITV).
The Indigenous Broadcasting Program is an important limb of the Government’s Indigenous
arts and cultural policy. Funding provided under this program supports a number of
Indigenous-owned and Indigenous-controlled community radio stations that broadcast in
Indigenous languages, including Remote Indigenous Broadcasting Services (RIBS). During
the reporting period, the Commonwealth continued to fund Indigenous community radio
under the Indigenous Broadcasting Program (IBP). In 2010-11 the IBP supported 61 projects
valued at $14.786 million.211 There are no data to indicate the proportion of programming on
Indigenous community radio that is broadcast in an Indigenous language.
On 13 July 2007, the first Australia-wide Indigenous television service, NITV, was launched
after many years of Indigenous lobbying. National Indigenous Television is transmitted as a
distinct channel on the Imparja satellite service, and is retransmitted on a number of
subscription television platforms. National indigenous Television incorporates some
Indigenous language programming in its schedule, but primarily transmits in English.
209
Above note 145, p 81.
Commonwealth Office for the Arts, Department of Prime Minister and Cabinet, ‘Maintenance of
Indigenous Languages and Records (MILR) Program funding recipients’ webpage,
http://www.arts.gov.au/topics/indigenous-arts/maintenance-indigenous-languages-and-records/milrfunding-recipients (accessed 29 August 2011).
211 IBP funding in 2010-11 was focused on: the operation and administration of Indigenous owned and
controlled community radio services - including Remote Indigenous Broadcasting Services (RIBS)
units - that meet the program guidelines; Remote Indigenous Media Organisations (RIMOs) which
provide technical support and training to RIBS; peak bodies that promote and service the interests of
their Indigenous radio station membership; radio news and other content for broadcast on Indigenous
radio stations; the operation of Imparja Television including satellite uplink facilities for NITV and
community radio services, Indigenous Community Television; and training for Indigenous
broadcasters through accredited training providers.
210
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In 2006, NITV entered into an agreement that would deliver $48.5 million over four years
from 2006-07 to 2009-10. On 16 April 2010, the Government announced that NITV would be
funded for one year, 2010-11, to the sum of $15.2 million. On 6 April 2011, in response to
the Indigenous Broadcasting Sector Review (IBS Review), the Government announced
NITV would continue to receive operational funding of $15.2 million for 2011-12. The funding
is to be allocated as part of the 10 May 2011 Budget.
It is noted that the funding allocated to NITV and the IBP is not in accordance with the
recommendations of the IBS Review, nor the submission of NITV.212 The IBS Review
recommended NITV and IBP funding receive a boost of $12 million per year, phased in over
two years. In making a case for increased funding, the IBS Review observed the
recommended increase is a ‘very small fraction of the Commonwealth’s Indigenous-specific
expenditure, averaging $3 billion per year in real terms since 2000, across all portfolios
relevant to Indigenous affairs’.213
Table 29. Funding allocated to National Indigenous Television and the Indigenous
Broadcasting Program 2006 - 2011
2006-07 2007-08
2008-09
2009-10
2010-11
2011-12
NITV
(a)
(a)
IBP
unknown $13.965
million
(b)
$21.5 million $15.081
(approx) (c) million
$13.926m
$14.588
million
$15.235
million
$14.786
million
$15.20
million
$14.5 million
(a)
In 2006 NITV entered into an agreement that would deliver $48.5 million over four-year from 2006-07 to
2009-10. During 2006-07 the NITV steering committee worked to deliver the constitution and business plan.
In 2007-08 NITV began to progressively hire staff. In 2008-09 NITV launched several programs, including
NITV National Indigenous News.
(b) Source: Department of the Environment, Water, Heritage and the Arts, Annual Report 2007-08.
(c) Source: NITV answers to questions on notice from Senator the Hon Judith Troeth, Re Senate Environment,
Communications and Arts Committee Inquiry, Broadcasting Legislation Amendment (Digital Television) Bill
2010.
5.8.4 School-based Indigenous language programs
The majority of language programs are undertaken by Indigenous community organisations
or within the state and territory education systems, although funding for many programs is
provided by MILR.
In 2006 the Australian Council for Educational Research undertook a national survey of
Indigenous language programs in Australian schools. This assessment included a
comprehensive survey of numbers and types of languages programs being delivered in
212
In February 2010 NITV made its own evidence-based submission to the Government for a fiveyear funding agreement that would deliver $25.8 million (year 1), $28.4 million (year 2), $31.1 million
(year 3), $32.3 million (year 4) and $33.2 million (year 5).
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schools in each state and territory and how these are staffed and funded. The findings were
published in a report entitled The Way Forward.
This report made the following summary findings:

Between 2006 and 2007, over 16,000 Indigenous students and 13,000 nonIndigenous students located in 260 Australian schools were involved in language
program, covering 80 different Indigenous languages.214

Most of these students were located in Government schools in the Northern Territory,
Western Australia, New South Wales and South Australia. In each of these states
there is strong systemic support for curriculum documentation and resources, initial
teacher preparation and ongoing teacher professional development and support.215

About 28% of programs are first-language programs, and include bilingual programs
undertaken by students in the early years of schooling.216

About 12% of programs are second-language learning programs, where a language
is taught to learners in the languages area of the school curriculum. In this type of
program students have little or no assumed knowledge of the target language.217

About 50% of programs are language-revival programs. These include language
revitalisation (about 28%), where the language is still spoken by a small group of
older speakers; language renewal (about 4%), where the language is no longer
spoken in its full form, but there is still sufficient linguistic heritage within the
community to develop a language program; and language reclamation (about 18%),
where there has been a break in the transmission of the spoken language but there
is sufficient evidence from archival material for language reconstruction and
learning.218

The remainder of programs (about 10%) are language-awareness programs, where
little bits and pieces that are known about a language are incorporated into another
area of learning. The focus is on teaching about Indigenous languages and on
exploring socio-historical issues.219
A new national curriculum for Australian schools is currently under development by the
Australian Curriculum and Reporting Authority, which will include ‘Indigenous perspectives’
across a range of disciplines so that students may learn about Indigenous people through
maths, science, English and history.220
214
Above note 160, p x.
Above note 160, p x.
216 Above note 160, p xi.
217 Above note 160, p xi.
218 Above note 160, p xi.
219 Above note 160, pp xi-xii.
220 Australian Curriculum Assessment and Reporting Authority, ‘Aboriginal and Torres Strait Islanders
histories and cultures’ webpage,
http://www.acara.edu.au/curriculum/aboriginal_and_torres_strait_islander_education.html (accessed
29 August 2011).
215
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State of Indigenous cultural heritage 2011
Through the Language Studies program, students may have the opportunity to study
Indigenous languages as Language Other Than English (LOTE) if teachers have Indigenous
language skills and the language resources exist in the school. 221 It is not yet clear whether
this is a positive development, the outcome will be clearer once the government completes
consultation processes with Indigenous people regarding the development of ‘Indigenous
perspectives’.222
5.9
Indigenous community members’ attitudes towards their own
languages
Most respondents to the NILS 2005 made positive comments about language and
expressed an interest in learning to speak it, or in having their children learn to speak it. The
NILS 2005 also noted that language reclamation movements were ‘gathering momentum in
various places’.223
Anecdotal feedback from the language stakeholders interviewed for this report suggests that
language reclamation movements have continued to build momentum during the reporting
period:
A lot of communities want more knowledge and skills to help with language revival including,
using IT and linguistic skills. Communities want to be able to develop learning resources and
up skill members so they can teach language. The number of communities wanting to do this
type of [language reclamation] work is going through the roof. The funding and the resources
are no longer adequate at the national and state levels.224
CEO, Victorian Aboriginal Corporation for Languages
5.10 Overall proportion of Indigenous people whose
language spoken at home is an Indigenous language
main
Data on the proportion of Indigenous people whose main language spoken at home is an
‘Indigenous language’225 has been reported in the ABS Census 1986, 1991, 1996, 2001 and
2006. As shown in Figure 7, the proportion of Indigenous people speaking an Indigenous
language at home has declined each year since the ABS Census 1991.
221
Above note 145, p 79.
Above note 145, p 79.
223 Above note 149.
224 Interview with the CEO of the Victorian Aboriginal Corporation for Languages on 6 April 2011.
225 Note that the Census question asks people whether they speak an ‘Indigenous language’, rather
than asking which Indigenous language they speak.
222
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State of Indigenous cultural heritage 2011
Figure 7. Indigenous people who speak an Indigenous language at home as a proportion of
total Indigenous population by the number of speakers, ABS Census 1986 - 2006
18%
16%
% OF POPULATION
14%
12%
10%
8%
6%
4%
2%
0%
1986
1991
1996
2001
2006
YEAR DATA COLLECTED
Notes: Figures were available as far back as 1976, which was the first year the ABS reported the “number of
people aged 5 years or more who regularly use an Aboriginal language”. In 1976, 17% of the Indigenous
population spoke an Indigenous language.226 Although this figure has not been included in Figure 7 because data
relating to Indigenous people in the 1976 Census is considered somewhat inaccurate.227
For the decade from 1996 to 2006, the ABS Census also provides Indigenous-language
speaker figures by age. Over this period, the steepest decline has been among speakers in
the 15 to 24, and 45 and over age groups, as set out in Figure 8. The number of speakers in
the zero to 14 age group increased slightly over the five-year period from 2001 to 2006.
226
In 1976 the Indigenous population was 160,916 and the number of speakers of Indigenous
languages was 27.274. Source: ABS, 1976 Census: Population and Dwellings: Summary Tables
(2417.0)
227 It should be recalled that the 1971 Census was the first to include Indigenous people in the
population count and there were significant issues around identification. For example, the Indigenous
population grew steeply between the 1971 Census and 1986 Census – from 115,953 persons to
227,645 persons. This growth was attributed to increased self-identification, additional awareness
campaign measures targeted at Indigenous people, the implementation of special field enumeration
procedures in Aboriginal communities and improvements to the Census system for coding Indigenous
responses, as well as birth increases. Source: ABS, Census 1986: Aboriginals and Torres Strait
Islanders: Australia, States and Territories (2499.0).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Figure 8. Indigenous persons that speak an Indigenous language at home as a proportion of
total Indigenous population by age, ABS Census 1986 - 2006
18%
% OF ESTIMATED POPULATION
17%
16%
15%
14%
0-14 years
13%
15-24 years
12%
25-44 years
11%
45+ years
10%
9%
Total
8%
1986
1991
1996
2001
2006
YEAR DATA COLLECTED
Sources: ABS Census of Population and Housing, Population Characteristics, Aboriginal and Torres Strait Islander Australians,
Australia, 1996, 2001, 2006 (4713.0.55.001), ABS, Canberra; ABS Census of Population and Housing, Experimental Estimates
and Projections, Aboriginal and Torres Strait Islander Australians, 1991 to 2021 (3238.0), ABS, Canberra; and ABS Census
Tables 1986, 1991, 2001, 2006.
Notes: Data for total speakers for the years 1986 and 1991 only is based on proportion of Indigenous language speakers as a
proportion of the actual population as counted in the Census. For other years data is based on estimated language speakers as
a proportion of estimated Indigenous population. The discrepancy between estimated and actual proportions for 1996 was
13.65% (actual) – 13.26 (estimate); for 2001 was 12.42% (actual) – 12.14 (estimate); and for 2006 was 12.24% (actual) –
12.10% (estimate).
Based on the NATSISS data, in 2008 about one in nine (11.5%) Indigenous people aged 15
years and over spoke an Indigenous language as their main language at home. Compared
to 2002, this figure has not changed significantly (see Figure 9).
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State of Indigenous cultural heritage 2011
Figure 9. Estimated proportion of Indigenous persons whose main language spoken at home
is an Indigenous language, by age group, NATSISS 2002 - 2008
30%
% OF POPULATION
25%
20%
15%
10%
12.0%
11.5%
8.3%
2002
2008
5%
0%
4-14 years
15+ years
AGE OF SPEAKERS
Notes: No data on 4 to 14 year olds recorded in the 2002 NATSISS.
In 2008, almost four in nine (41.7%) people living in remote areas spoke an Indigenous
language as their main language at home (see Figure 10). Of Indigenous children aged four
to 14 years, 8.3% spoke an Indigenous language as their main language at home. One-third
(32.9%) of Indigenous children in remote areas spoke an Indigenous language as their main
language at home.
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State of Indigenous cultural heritage 2011
Figure 10. Estimated proportion of Indigenous persons whose main language spoken at home
is an Indigenous language, by Remoteness area and age (NATSISS 2008)
45%
41.7%
% OF POPULATION
40%
4-14 Years
15+ years
32.9%
35%
30%
25%
20%
15%
10%
5%
0.5%*
0.8%*
2.2%
0%
Major cities
Inner / Outer regional
area
REMOTENESS AREA
Remote / Very
remote area
Notes: Estimates marked with an * have a relative standard error of 25% - 50% and should be used with caution.
The majority of adults aged 15 years and over (82.4%) and children aged four to 14 years
(63.4%) whose main language spoken at home is an Indigenous language were
concentrated in the Northern Territory, Queensland, South Australia and Western Australia
(see Figure 11).
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State of Indigenous cultural heritage 2011
Figure 11. Estimated proportion of Indigenous persons whose main language spoken at home
is an Indigenous language, by age group for NT, WA, SA and QLD (NATSISS 2008)
60%
55%
52.7%
50%
% OF POPULATION
45%
44.1%
40%
35%
30%
4-14 years
25%
15+ years
20%
15%
10.1%
10%
6.3%*
9.2%
6.8%*
10.4%
6.2%*
5%
0%
NT
WA
SA
QLD
STATE OR TERRITORY
Notes: Estimates marked with * have a relative standard error of 25% - 50% and should be used with caution.
The estimates of language speakers in NSW and the ACT were not published in the NATSISS state-by-state
breakdown, but the estimates for NSW and the ACT were included in the overall Australian estimate. The
estimates for Victoria were published in the NATSISS but had a relative standard error of greater than 50% and
are not considered reliable for use.
5.11 Overall proportion of Indigenous people who speak an
Indigenous language
Based on the NATSISS 2008, two in five (40%) of Indigenous people aged 15 years and
over spoke, or spoke some words of, an Indigenous language. Almost three in five (56%)
Torres Strait Islander people spoke, or spoke some words of, an Indigenous language
compared to two in five (39%) of Aboriginal people (see Figure 12).
Of Indigenous people aged 15 years and over who lived in remote areas, 73% spoke, or
spoke some words of an Indigenous language, compared to 32% of those living in major
cities and 28% of people in regional areas.
Over one-third of Indigenous children aged four to 14 years spoke, or spoke some words of,
an Indigenous language in 2008. Indigenous children living in remote areas were more likely
than those in urban areas to speak, or speak some words of an Indigenous language (63%).
Indigenous people living in the Northern Territory, Queensland, Western Australia and South
Australia were much more likely to speak, or speak some words of an Indigenous language.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
% OF POPULATION
Figure 12. Estimated proportion of Indigenous persons who speak an Indigenous language, by
age and state/territory of usual residence (NATSISS 2008)
75%
70%
65%
60%
55%
50%
45%
40%
35%
30%
25%
20%
15%
10%
5%
0%
71.1%
4-14 years
62.6%
60.1%
15+ years
51.7%
34.5%
32.3%
25.9%
23.0%
23.2%
22.6%
19.9%
19.1%
15.9%
11.6%
8.2%
6.1%
3.2%
NSW
1.6%*
QLD
VIC
SA
WA
NT
STATE / TERRITORY
TAS
ACT TOTAL
5.12 Programs and funding related to traditional knowledge and
cultural practice
5.12.1 Commonwealth Indigenous Culture Support Program
The Indigenous Culture Support Program (ICS) supports the maintenance and continued
development of Indigenous culture in communities.228 The Program places an emphasis on
building community sustainability, with members of Indigenous communities participating in
cultural activities and passing on knowledge and skills across age groups.229
The ICS Program supports a wide range of cultural projects. These include a young
mothers’ cultural program, multimedia workshops in cities and remote areas, traditional art
and craft production, dance and theatre productions and community festivals across
Australia showcasing Indigenous talent, particularly events featuring young musicians.
Over the last 4 years, funding under the ICS has remained relatively stable at between $6.5
million and $7.5 million.230 Yet in 2010-11 the funding sought by Indigenous people under
Commonwealth Office for the Arts, Department of Prime Minister and Cabinet, ‘Indigenous Culture
Support Program’ webpage, http://www.arts.gov.au/topics/indigenous-arts/indigenous-culture-support
(accessed 29 August 2011).
229 Commonwealth Department of the Environment, Water, Heritage and the Arts, Annual Report
2009-10, http://www.environment.gov.au/about/publications/annual-report/09-10/index.html (accessed
29 August 2011).
230 Above note 228.
228
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State of Indigenous cultural heritage 2011
the ICS ($29.606 million) was almost 5 times the total amount of funding granted ($6.758
million).231
5.12.2 Tourism
Indigenous tourism is a key segment of the Australian tourism industry. Tourism contributed
more than $33 billion to Australia’s GDP in 2009-10. In 2009, spending by Indigenous
tourism visitors was valued at $7.2 billion, representing 12% of total visitor expenditure in
Australia.232
The size of the market for cultural tourism is growing steadily with around half of all
international visitors to Australia participating in a cultural activity each day of their visit and a
significant percentage of this is Indigenous tourism.233 A number of Australian jurisdictions
have developed specific Indigenous tourism strategies, and programs to support Indigenous
tourism businesses, including at the national level the Indigenous Tourism Development
Working Group.234
In 2009 the breakdown of the types of cultural activities tourists participated in were, for
international visitors, 57% visit to museums of galleries, 20% experience of Aboriginal art,
crafts or cultural displays and 11% visit to an Aboriginal community.
However, for domestic Australian tourists less than 3% of their cultural activities included
Aboriginal art, crafts or cultural displays or visits to an Aboriginal community,235 underlining
the growing but under-developed interest in Indigenous culture by many Australians.
Tourism Research Australian reported in 2010 that although domestic visitors represent over
70% of the total Indigenous tourism sector, limited research has been conducted in profiling
the domestic Indigenous tourism market.
Tourism Research Australia identified that some of the issues associated with domestic
Indigenous tourism visitors were:
 a lack of understanding of what an Indigenous tourism experience constitutes;
 skepticism for tourism products claiming to offer an ‘Aboriginal cultural experience; and
231
Above note 228.
Australian Government Tourism Research Australia (2010). Indigenous tourism in Australia:
Profiling the domestic market,
http://www.ret.gov.au/tourism/tra/Documents/Domestic%20Analysis/Indigenous_Tourism_in_Australia
_FINAL.pdf (accessed 2 June 2011).
233 Above note 232.
234 Australian Government Tourism Research Australia, ‘Indigenous tourism development working
group’ webpage, http://www.ret.gov.au/tourism/tmc/workinggrps/indigenous/Pages/default.aspx
(accessed 2 June 2011).
235 Commonwealth Department of Resources, Energy and Tourism (2010). ‘SNAPSHOTS 2009:
Cultural and Heritage Tourism in Australia’,
http://www.ret.gov.au/tourism/Documents/tra/Snapshots%20and%20Factsheets/Cultural_09_FINAL.p
df (accessed 1 May 2011).
232
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State of Indigenous cultural heritage 2011
 Australians often perceive the Indigenous product to be contrived, lacking authenticity
and developed for the international market.236
The number of Indigenous tourism businesses is growing, but remains significantly underdeveloped. In 2010 there were over 300 Indigenous tourism businesses in operation in
Australia, of which 247 operate on a regular basis. Over half of all Indigenous tourism
businesses are located in remote or very remote areas.237
5.12.3 Indigenous art
Indigenous culture in the form of Indigenous art recorded a boom in the reporting period.
Total Indigenous Australian art sales in 2010 are estimated at $10.1 million, but from 2004 to
2007 was as high as $26 million per annum, including primary sales and resales.
5.13 Knowledge of Indigenous culture and heritage
There is greater public awareness of the diversity of Aboriginal cultures and languages than
there was 30 or 40 years ago. The launch of NITV in 2007 has provided a window into
Aboriginal ways of life that is unprecedented in its reach.
No comprehensive studies of Australians’ attitudes to Indigenous heritage were undertaken
in the reporting period. However, in the reporting period the Australian Reconciliation
Barometer of attitudes was published by Reconciliation Australia and provides some insight
into the attitudes to Indigenous culture.
The Australian Reconciliation Barometer 2010 found that the majority of Indigenous and
non-Indigenous Australians felt that the relationships between Indigenous people and other
Australians was important, but that levels of trust are low. The Reconciliation Barometer
showed that Indigenous culture is important to Australians, with two thirds of general
respondents identifying that Indigenous culture is important to Australia’s identity. However,
the majority of non-Indigenous respondents had a low level of understanding about
Indigenous peoples and cultures and still received most of their information about
Indigenous people through the media.238
236
Above note 232.
Above note 232.
238 Above note 166.
237
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Figure 30. Reconciliation Barometer - 2008
Source: Australian Reconciliation Barometer (2008) http://www.reconciliation.org.au/home/reconciliationresources/facts---figures/australian-reconciliation-barometer (accessed 31 April 2011).
5.14 Comments and recommendations
Data relating to traditional knowledge and cultural practice should be better integrated into
future State of the environment reporting frameworks.
Cultural practices are reported to a limited extent through other SoE Indicators, which were
not a focus for this report, including:
 BD-07 Examples of Indigenous knowledge of species and ecological communities and
their utilisation for management by Indigenous and non-Indigenous managers and for
other purposes by Indigenous and non-Indigenous people; and
 CO-63 Estimated number of marine animals harvested by Indigenous fishers (which in
the past has considered traditional fishing trends).
While these indicators are useful, reporting to date has been limited, and it is recommended
that consideration be given to revising and expanding reporting on cultural practices in future
SoE reports, within a framework that integrates the reporting of ‘cultural practices’ with
‘Indigenous heritage’.
There is a need for more work at the national level to develop appropriate and meaningful
indicators for assessing the state of traditional knowledge and cultural practices. This work
should be guided by international developments, especially those relating to the indicators
being developed by the Article 8(j) Working Group of the Convention on Biological Diversity.
The development of new indicators for assessing traditional knowledge and cultural practice
must be undertaken in partnership with Indigenous people
Suggested traditional knowledge and cultural practice indicators might include:
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State of Indigenous cultural heritage 2011
(a)
Indicators relating to numbers of Commonwealth, state and territory government
programs to preserve, maintain and revitalise traditional knowledge and funding
allocated by those governments to support such programs.
There are an increasing number of Indigenous communities engaging in projects to maintain
their traditional knowledge. This is also reflected in the large number of applications being
made to the Commonwealth’s Indigenous Culture Support program.
Unfortunately, there is no single funding program for traditional knowledge. To report against
this indicator, research would be needed to uncover the various sources of funding that
Indigenous people access to support their traditional knowledge.
Briefly, some of these sources would include: Maintenance of Indigenous Languages
Program; Indigenous Cultural Support Program; Working on Country; Caring for Country;
and National Environmental Trust funds; Indigenous Heritage Program for site related
traditional ecological knowledge; and Philanthropic organisation such as the Australian
Wildlife Conservancy.
(b)
Indicators related to laws, regulations and policies that recognise and enable cultural
practice.
Laws, regulations and policies that recognise and enable cultural practice could be used as
an indicator of the state of traditional knowledge and cultural practice. A limited legislative
review of these types of provisions was undertaken for this report (see Appendix 3). It is
recommended that this review be expanded in the next SoE.
(c)
Indicators related to recognition of Indigenous customary laws and protocols.
Indigenous customary laws are essential to identity and cultural maintenance. Indigenous
customary law in Australia is the body of rules, values and traditions that are accepted by
the members of an Indigenous community as establishing standards or procedures to be
upheld in that community. Customary laws may be recognised in the following ways:
 legal recognition in Australian legislation;
 where Aboriginal people own or control land they may enforce observance of
customary law, although where customary law conflicts with Australian law, Australia
law take precedence; and
 protocols are one form of recognising Indigenous customary laws within arts and
cultural practice.
Use of these indicators must be backed by appropriate systems for collecting data. The
timeframes involved in data collection must realistic and long-term.
The international trends in thinking about indicators for biodiversity and Indigenous people
also recognise the link for Indigenous communities between a healthy environment, strong
culture and strong people. It is recommended that indicators relating to happiness, health
and wellbeing are explored in any re-evaluation of the SoE Reporting framework.
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6.
Pressures on Indigenous heritage
6.1
Introduction
This section discusses the pressures that affect the physical condition of Indigenous cultural
heritage places and the integrity of cultural values associated with Indigenous cultural
heritage places. The issues have been divided into direct threats (section 6.2) and
underlying pressures (section 6.3). Pressures impacting Indigenous intangible cultural
heritage are also discussed (section 6.4).
The information on pressures in this section is drawn from a review of the literature, other
sections of this report and from the Indigenous cultural heritage case studies in Attachment
A. A total of eight case studies of the condition and integrity of Indigenous cultural heritage
have been prepared for this report, comprising six site specific case studies and two regional
case studies: Tjilbruke Dreaming Trail, (South Australia); Preminghana Indigenous Protected
Area (Tasmania); Magamarra (Northern Territory); Biamanga (New South Wales); Eel
Traps, Lake Condah (Victoria); Lake Eyre (South Australia); Wet Tropics World Heritage
Area (Queensland); and the Kimberley region (Western Australia).
The case studies highlight the diversity of Indigenous values that may be associated with
physical heritage places. Each case study includes a detailed explanation of why the site or
region is significant to Traditional Owners, which provides context for understanding why
certain activities threaten cultural integrity and why certain responses to these pressures are
ineffective or inadequate.
6.2
Direct threats
6.2.1 Approved destruction
One of the main threats to Indigenous heritage places is conscious destruction through
government-approved development—that is, development for which decision-makers are
aware of (or obliged to be informed about) Indigenous heritage impacts, yet choose to
authorise the destruction of Indigenous heritage. This widespread process, combined with a
general lack of understanding of physical Indigenous heritage means that individual
decisions on assessment and development result in progressive cumulative destruction of
the Indigenous cultural resource.
While nearly all jurisdictions introduced stronger requirements to assess Indigenous heritage
and consult with Indigenous people about development, there is little evidence that this has
led to improved protection for Indigenous heritage sites.
The past five years have been remarkable for the number of high-profile conflicts between
Indigenous people, government decision-makers and industries (including mining, forestry
and urban development) about developments that destroy significant and sacred sites. A
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number of recent legal challenges by Indigenous people have highlighted the lack of legal
avenues or formal rights for Indigenous people seeking to enforce protection of their heritage
The threat posed by approved destruction is closely linked to a range of underlying
pressures complained of by many Indigenous people, in particular the lack of Indigenous
control and ownership of cultural heritage and lack of formal legal avenues to reject
developments that impact their cultural heritage.239
The role of Indigenous people in heritage processes is largely confined to consultation,
rather than decision-making. There is a tendency for the economic value of a development
proposal to outweigh the value of conserving Indigenous cultural heritage. In this sense the
ability of Traditional Owners to keep their ‘Country’ intact from a cultural perspective is
subjugated to economic interests.
Furthermore, the social impacts of destroying a culturally significant site are not assessed to
the same extent as environmental impacts in development approval processes.
6.2.2 Development
Development poses a significant threat to Indigenous cultural heritage. The types of
development of most concern to Indigenous people include: urban expansion,
redevelopment, changing land uses, infrastructure (especially roads), land clearing, logging
and mining.
The majority of cultural heritage assessments are undertaken by commercial industries
seeking to undertake activities that may impact on Indigenous heritage. Economic
considerations are prioritised over heritage protection, in the absence any rigorous
assessment of how much of the Indigenous heritage estate has already been destroyed
through past activities in the region.
The impacts of development being approved on culturally significant sites are wide ranging.
Cultural heritage may be physically destroyed or damaged. Access to the cultural heritage
may be restricted, impinging on the ability of indigenous people to continue cultural
practices. Even where the heritage is physically conserved, the integrity cultural values
associated with the heritage item may be damaged. For example, removing rock art from the
environment or building residential developments in close proximity to sites where secret
cultural practices are performed.
6.2.3 Redevelopment and changing land use
Applications for redevelopment or to change land use where the new activity will be similar
to past patterns of activity on the land are often considered ‘low impact’ by Indigenous
cultural heritage legislation, because it is assumed that there is no extra or new impact if
those activities continue.
239
Above note 8.
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There is also a tendency to categorise activities that have historically not required approval
as ‘low impact’. These types of activities, such as farming, have usually been carried out on
an ongoing basis, over long periods of time. The exemption for these types of activities
assumes that all Indigenous heritage values in the area have already been destroyed, which
is not always the case.
6.2.4 Agricultural practices
Damage caused by stock, land clearing or other agricultural practices remain a significant
pressure on Indigenous cultural heritage.
6.2.5 Illegal destruction or desecration
Illegal destruction or desecration of culturally significant sites (including registered sites),
whether intentional or negligent, by local and state government agencies, developers,
commercial and recreational fishermen and other industries remains a serious concern.
The case studies highlighted three high profile examples of illegal destruction or desecration.
In 2011, a commercial fisherman was fined $5000 for using a gill net at the Magamarra
registered sacred site, in the waters of the Blyth River in the Northern Territory.240 In that
same year, Forests New South Wales were found to have illegally logged within a registered
Aboriginal Place at Biamanga,241 while the South Australian Department of Environment and
Natural Resources is investigating claims that a group of sailors took to Lake Eyre after
being refused permission to sail on the lake on the basis of the spiritual beliefs of the
Traditional Custodians of Lake Eyre.
6.2.6 Neglect or abandonment
While registration of a site provides some protection against damage, there are no
requirements for ongoing maintenance to preserve the site. Neglect or abandonment of
cultural heritage places, especially on private land or government lands in rural areas, is a
particular concern.
6.2.7 Natural events and invasive species
The case studies all reflected a number of natural events which impact the condition of
Indigenous cultural heritage especially weather, fire and erosion. Invasive plant species and
feral animals are direct threats, but may also contribute to erosion.
6.2.8 Climate Change
Climate change represents a significant threat to Indigenous heritage. Despite having the
smallest ecological footprint, Indigenous people around the world are predicted to be
amongst the hardest hit by the impacts of climate change.242
Case Studies, Attachment 1, ‘Magamarra’.
Case Studies, Attachment 1, ‘Biamanga’.
242 For discussion of the impact of climate change on Indigenous peoples worldwide see papers from
the International Expert Group Meeting on Indigenous Peoples and Climate Change, 2-4 April 2008,
Darwin, Australia, http://www.un.org/esa/socdev/unpfii/en/EGM_CS08.html (accessed 1 June 2011).
240
241
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Environmental impacts from climate change on Indigenous people’s traditional lands and
waters have a direct impact on Indigenous peoples’ ability to undertake cultural heritage
practices and maintain Indigenous cultural knowledge.
There has been some minimal examination of the likely impact of climate change on tangible
cultural heritage in the form of heritage places. One example of recent research by
Australian Dr Michael Pearson identified significant threats to heritage sites in coastal areas.
In relation to the Great Barrier Reef for example, Dr Pearson notes:
The potential natural environment impacts of climate change on the Great Barrier Reef have
already been foreshadowed by two major coral bleaching events in 1998 (when 16% of the
world’s reefs and 3% of Australian reefs experienced coral bleaching) and again in 2002. …
Major changes to the ecosystems of the reef would impact dramatically on Indigenous
traditional hunting and on cultural associations with sites. Sea level rise and increased
extreme weather events would be a threat to Indigenous and historic sites, many of which are
on coastal lowland areas.243
More broadly, Dr Pearson identifies a range of specific threats to archaeological sites, as
listed below, and further specific threats to historic places or buildings:
 Modification of precipitation regimes and increased year-to-year variability;
 Increased droughts and floods;
 Changes in water tables and ground water levels;
 Changes in humidity cycles;
 Changes in soil chemistry;
 Changes in soil temperature;
 Changes in wetting and drying cycles, and salt crystallisation and dissolution; and
 Sea level rise and increased coastal erosion events.
The availability of increasingly detailed research about the impact of climate change
provides an opportunity for pro-active planning, protection and mitigation strategies to
address the threats identified.
It is also noted that climate change can create opportunities for Indigenous people to benefit
economically from taking part in the emerging carbon economy.
An example of a highly successful Indigenous carbon-abatement project undertaken in the
reporting period has been developed in the Western Arnhem Land region of Australia. This
project involves Indigenous people using traditional fire-management practices that have
been scientifically shown to reduce greenhouse emissions as compared to naturally
Pearson, M. (2008). ‘Climate change and its impacts on Australia’s cultural heritage’ in McIntyreTamwoy, S. (ed), Global Climate Change and Cultural Heritage, reproduced in 21(1) Historic
Environment,
http://australia.icomos.org/wp-content/uploads/Climate-change-and-its-impacts-onAustralias-cultural-heritage.pdf (accessed 1 June 2011), pp 37-40.
243
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occurring wildfires, and trading the emissions saved as carbon offsets. A world first, this
project has recently been showcased for adoption in other similar climates by Indigenous
communities.
The North Australian Indigenous Land and Sea Management Alliance (NAILSMA) is
currently developing four landscape-scale savannah fire-management projects focused on
pursuing carbon-trading opportunities for Indigenous land managers, to build on the
successful precedent set with the West Arnhem Fire Management Agreement (WAFMA) and
subsequent work on the Western Arnhem Land Fire Abatement project (WALFA).244
6.2.9 Unmanaged tourism and recreation
Unmanaged tourist and recreational activities impact on cultural heritage in a number of
ways. Indigenous people are concerned about inadvertent damage to heritage caused by
recreational activities (such as off-road driving and motorcycling) and the cumulative impacts
of heavy tourism.
Indigenous people also reported unauthorised tours of Indigenous heritage by nonIndigenous people and lack of respect for customary laws that regulate interaction with sites
(for example, gender restrictions attached to sites).
6.3
Underlying pressures
6.3.1 Lack of Indigenous ownership and control
The key underlying pressure, and most significant concern for Indigenous people, is the lack
of Indigenous ownership and control of their heritage. The role of Indigenous people in
management of indigenous heritage remains largely limited to consultation, rather than
decision-making.
Indigenous people lack the power to reject developments that impact on their cultural
heritage. There is often a total lack of appropriate and timely consultation with Indigenous
communities about development, including failure to consult correct Indigenous people.
A number of legal challenges by Indigenous people in the reporting period have highlighted
the lack of legal avenues or formal rights for Indigenous people seeking to enforce protection
of their heritage.
Indigenous cultural heritage located on Indigenous-owned or Indigenous-controlled lands
generally experience a good level of protection. While the proportion of Indigenous-owned
and Indigenous-controlled lands is growing, the majority of Indigenous heritage is located on
private, leasehold or crown lands, making Indigenous people reliant on landowners and the
government to conserve their heritage.
North Australian Indigenous Land and Sea Management Alliance, ‘Carbon Project’ webpage,
http://www.nailsma.org.au/projects/indigenous_carbon_abatement.html (accessed 29 August 2011).
244
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There is also a lack of mechanisms and legal avenues that enable Indigenous people to
carry out their customary obligations to care for Country and to ensure customary laws
relating to sites are adhered to on land other than Indigenous-owned or Indigenouscontrolled land.
6.3.2 Cumulative impacts
There has been an increase recording and listings of Indigenous sites but there is little to no
accounting or public reporting of the cumulative impact of the destruction of Indigenous
heritage. There has been no rigorous assessment of how much of the indigenous heritage
estate has already been destroyed through past activities. While in principle support for
cultural landscape planning exists, this has not been resourced or actively implemented by
policy makers.
6.3.3 Lack of Indigenous access to land and water
Access to land is restricted especially freehold, leasehold and some government-controlled
land. Indigenous people want access to their cultural heritage so they may carry out site
maintenance (often no one else will be responsible for the ongoing maintenance required to
conserve sites), continue or revive cultural practice (which will impact on the integrity of the
cultural values associated with a site) and/or monitor compliance of land owners with cultural
heritage protection laws (perception that many sites are being destroyed on private land
because communities have no way to confirm this).
Indigenous people also lack access to water rights and water security. The manipulation of
water flows for urban and agricultural use has severely impacted culturally significant bodies
of water and waterways and there is a need to recognise Indigenous values associated with
water, including recognition of right to secure ‘cultural flows’.
6.3.4 Lack of funding
Many Indigenous communities lack the financial resources necessary to undertake cultural
heritage protection activities, including cultural heritage mapping of their traditional lands.
Funding for communities to carry out their duties as environmental and heritage managers is
inadequate and uncertain funding, especially on Indigenous-owned or Indigenous-controlled
lands. This is particularly concerning given that Indigenous people are responsible for an
increasing proportion of Australia’s Natural Reserve System, through Indigenous Protected
Areas.
6.3.5 Legal, regulatory and management failures
There is a great deal of inconsistency between state and territory cultural heritage laws. The
poor legislative frameworks for cultural heritage management in some jurisdictions provide
little protection to Indigenous people and are more about enabling development.
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Most Indigenous heritage legislation is based around listing identified sites, and then dealing
with potential risks to those sites by Ministerial approvals or permits. This leads to reactive
rather than proactive Indigenous heritage planning.
There are very few prosecutions for breach of cultural heritage laws by government
agencies, despite strong sentiment in the Indigenous community that a lot of destruction is
occurring.245 The penalties for breaching cultural heritage laws are also viewed as
inadequate for deterring offenders.
Many Indigenous communities would like to have the power to enforce heritage laws
themselves, for example, through recognition of IPA rangers as cultural heritage officers or
fisheries officers with statutory enforcement powers.
Shared values, particularly natural and cultural values, often fail to be recognised in heritage
listing processes. The laws of some jurisdictions also fail to adequately recognise and
protect cultural landscapes, (as opposed to individual sites and objects).
6.3.6 Lack of awareness or understanding
Lack of knowledge in the wider community of Indigenous cultural heritage continues to place
pressure on Indigenous heritage and contributes to some direct threats such as inadvertent
damage through tourism or recreation.
Yet in 2011, due to increasing regulation, there is probably more awareness of Indigenous
cultural heritage than ever before. A greater concern for Indigenous people is the lack of
understanding and respect in the wider community, and some government agencies, of the
value of cultural heritage to Indigenous people. For example, the vision of the Victorian
Aboriginal Heritage Council in its Strategic Plan for 2011-2014 is ‘a community that respects
Aboriginal cultural heritage and the cultural responsibilities of Traditional Owners’.246
6.4
Pressures affecting Indigenous intangible cultural heritage
A significant pressure on Indigenous intangible cultural heritage is the lack of Indigenous
ownership or access to Country for the purpose of maintaining traditional knowledge (for
example, teaching children about the environment) and cultural practice.
Sometimes laws may also restrict cultural practices, such as prohibitions on campfires in
some national parks and restrictions of fishing in marine protected areas.
More broadly, there are a number of pressures that threaten Indigenous cultural resilience.
‘Cultural resilience’ relates to a culture’s capacity to maintain its distinct cultural identity,
which it does by maintaining and transmitting its traditional knowledge through practices and
245
Above note 8.
Victorian Aboriginal Heritage Council, Strategic Plan 2011-2014,
http://www.dpcd.vic.gov.au/indigenous/aboriginal-heritage-council (accessed 29 August 2011).
246
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expressions. The resilience of a cultural community will underpin its ability to protect its
traditional knowledge. If it is not a resilient community, it is arguably less able to protect its
cultural heritage.
Some the factors which impact on cultural resilience, include:
 Whether the cultural group is a minority or majority culture within a society;
 For minority cultures, such an Indigenous Australian cultures, lack of official
recognition of status and rights, reinforcing marginalisation;
 Cultural groups with small numbers of members are more at risk of endangerment,
and there are a number of Indigenous cultures in Australia that have very small
populations;
 Legislation, regulations and polices that prevent Indigenous people from engaging in
cultural practice;
 Being connected to land and living on country is associated with greater cultural
identification, higher levels of Indigenous language use and better health outcomes;
and
 Levels of support for cultural revival and reclamation.
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State of Indigenous cultural heritage 2011
7.
Conclusions
Indigenous heritage remains highly contested in Australia today.
There is a growing appreciation of Indigenous heritage amongst non-Indigenous people, and
strong goodwill amongst policy makers to improve processes for protecting and managing
Indigenous heritage.
The reporting period has also seen a large number of positive developments, and
commitments to further positive reform in terms of control, access and use of heritage sites,
land, water and natural resources by Indigenous people. Indigenous people are playing an
increasingly important role in sustainably managing Australia’s natural resources.
At the same time, however, there remains a lack of connection between Indigenous people’s
views about Indigenous heritage, and how it should be supported and managed, and the
views of government decision-makers.
Conflicts about the destruction of Indigenous heritage by approved industry activities remain
common, as are debates about the level of support for Indigenous culture and heritage
programs, including language programs.
Developments at the international level establish clear directions for change in line with
Indigenous people’s aspirations and are underpinned by recognition of the rights of
Indigenous people to own, control and manage their heritage.
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State of Indigenous cultural heritage 2011
Figures and Tables
Figures
1.
Applications and determinations under ATSIHPA 1984 to 2011 by type of application
2.
Valid applications and declarations under ATSIHPA 1984 to 2011
3.
Map of Native Title determinations, Australia
4.
Map of Indigenous Land Use Agreements, Australia
5.
Map of Claimant Applications as per the Register of Native Title Claims
6.
Map of Indigenous Protected Areas in Australia
7.
Indigenous people who speak an Indigenous language at home as a proportion of
total Indigenous population by the number of speakers, ABS Census 1986 – 2006
8.
Indigenous persons that speak an Indigenous language at home as a proportion of
total Indigenous population by age, ABS Census 1986 – 2006
9.
Estimated proportion of Indigenous persons whose main language spoken at home
is an Indigenous language, by age group, NATSISS 2002 – 2008
10.
Estimated proportion of Indigenous persons whose main language spoken at home
is an Indigenous language, by Remoteness area and age (NATSISS 2008)
11.
Estimated proportion of Indigenous persons whose main language spoken at home
is an Indigenous language, by age group for NT, WA, SA and QLD (NATSISS 2008)
12.
Estimated proportion of Indigenous persons who speak an Indigenous language, by
age and state/territory of usual residence (NATSISS 2008)
Tables
1.
Reviews and amendment of Indigenous heritage legislation since 2005
2.
Legislative recognition of Indigenous ownership and control by jurisdiction
3.
Number of Australian World Heritage Listed Places recognised for Indigenous
cultural heritage values 1995 – 2011
4.
Number of Indigenous places in the National Heritage List by state and territory 2005
and 2011
5.
Number of Indigenous places on the Commonwealth Heritage List by state or
territory 2005 and 2011
6.
Indigenous Places nominated to the National Heritage List, as of April 2011
7.
Total number of Indigenous places on the Register of the National Estate by state
and territory 1995 – 2011
8.
Applications for protection under the ATSIHP Act 1984 to 2011
9.
Numbers of Indigenous sites and places on the NSW Aboriginal Heritage Information
Management System and the NSW State Heritage Register 2000 to 2011
10.
Sacred sites registered and recorded on the NT Aboriginal Sacred Sites Register
11.
Indigenous heritage sites reported to the QLD Government 2000-2006, each year
12.
Aboriginal heritage ‘relics’ listed in the Tasmanian Aboriginal Site Index 2000 to 2011
13.
WA Listed Aboriginal places 2000 to 2011
14.
Western Australia, section 18 applications and decisions 2001 – 2006
15.
Queensland, Number of compliance notifications related to Indigenous cultural
heritage
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State of Indigenous cultural heritage 2011
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Number, proportion and type of human-related impacts on Indigenous sites reported
to the Queensland Government, 2002-03 to 2005-06
Commonwealth funding of the Indigenous Heritage Program 2004-05 to 2010-11
Percentage of Australia subject to Native Title
Indigenous Protected Areas compared with total Terrestrial Protected Areas in
Australia – Number and Area (hectares)
Intergenerational Language Transmission – Endangerment status of languages
according to NILS index, based on NILS 2005 data
Intergenerational Language Transmission – Endangerment status of languages
according to SOIL Age Profile Endangerment Index for age-group figures from the
ABS Census 2001
Intergenerational Language Transmission – Endangerment status of languages
according to SOIL Age Profile Endangerment Index for age-group figures from the
ABS Census 1996
Speaker-number index categories
Number of languages in each speaker-number index category based on ABS
Census 1996, 2001 and 2006
Absolute Number of Speakers for a sample of 37 Indigenous languages commonly
reported in the 1996, 2001 and 2006 ABS Census
The number of applications for funding and amount of funding sought compared to
the number of projected funded and the amount of funding granted under the
Maintenance of Indigenous Languages Program 2004-05 to 2010-11
Number of Maintenance of Indigenous Languages and Records grants annually by
state and territory from 2008-09 to 2010-11
Maintenance of Indigenous Languages and Records expenditure annually by state
and territory from 2008-09 to 2010-11
Funding allocated to National Indigenous Television and the Indigenous
Broadcasting Program 2006 - 2011
Reconciliation Barometer - 2008
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State of Indigenous cultural heritage 2011
Legislation and Cases
Cases
Kartinyeri v Commonwealth [1998] HCA 22
Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29 (Blue
Mud Bay decision)
Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of
Queensland (No 2) [2010] FCA 643 (Torres Strait Regional Seas Claim)
Legislation
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environment Protection and Biodiversity Conservation Regulations 2000 (Cth)
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Australian Heritage Commission Act 1975 (Cth)
Native Title Act 1993 (Cth)
Aboriginal Heritage Act 2006 (Vic)
Aboriginal Heritage Act 1972 (WA)
Aboriginal Relics Act 1975 (Tas)
Fisheries Management Act 1994 (NSW)
Fisheries Management Act 1994 (NSW)
Heritage Act 1977 (NSW)
Heritage Act 2004 (ACT)
Fisheries Management Act 2007 (SA)
Northern Territory Aboriginal Sacred Sites Act 1979 (NT)
Aboriginal Lands Rights Act 1976 (NT)
International agreements
United Nations Declaration on the Rights of Indigenous Peoples
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
International Labor Organisation Convention Regarding Indigenous and Tribal Peoples in
Independent Countries (ILO 169)
United National Educational, Scientific and Cultural Organisation Convention on the
Protection and Promotion of the Diversity of Cultural Expressions
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilisation of the Convention on Biological Diversity
UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage
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Australia ■ State of the Environment 2011 Supplementary information
142
State of Indigenous cultural heritage 2011
Appendices
Index
1.
List of current Australian Indigenous heritage legislation
2.
Provisions for protection of Indigenous heritage under Commonwealth, state and
territory heritage legislation
3.
Key legislative provisions for Indigenous access, use and management of natural
resources, by jurisdiction
4.
Overview of reviews and amendments to Indigenous heritage legislation, by
jurisdiction
5.
List of stakeholders interviewed
6.
Additional data and correction from Commonwealth, state and territory government
agencies
Australia ■ State of the Environment 2011 Supplementary information
143
State of Indigenous cultural heritage 2011
Appendix 1: List of current Australian Indigenous heritage
legislation
Legislation marked with an * is new in the reporting period, since the last State of the Environment
Report (2006)
Legislation marked with an ~ has been amended in the reporting period
Legislation marked with an + is currently under review
Note: This table does not include all commonwealth, state and territory legislation which impacts on
the management and protection of Indigenous heritage. It includes ‘heritage’ legislation, that is
legislation for which one of the primary objectives is the protection and management of heritage. As
indicated by the table in Appendix 2 (Provisions for the protection of Indigenous heritage under
Commonwealth, state and territory heritage legislation), in most Australian jurisdictions the definition
of heritage in heritage legislation refers to historic or cultural physical places and objects, and does
not generally extend to natural heritage.
Jurisdiction ‘heritage’ legislation
Other relevant legislation
Cth
Aboriginal and Torres Strait Islander Native Title Act 1993 (Cth)~+
Heritage Protection Act 1984 (Cth)+
Environment Protection and Biodiversity
Conservation Act 1999 (Cth)~+
Australian Heritage Council Act 2003
(Cth)~
Protection of Moveable Cultural Heritage
Act 1986 (Cth)+
ACT
Heritage Act 2004 (ACT)*~
NSW
National Parks and Wildlife Act 1974 Aboriginal Land Rights Act 1983 (NSW)
Environmental Planning and Assessment Act
(NSW)~+
Heritage Act 1977 (NSW)~
1979 (NSW)
NT
Northern Territory Aboriginal Sacred Aboriginal Land Rights (Northern Territory) Act
Sites Act 1989 (NT)
1976 (Cth)
Northern Territory Heritage Conservation Environmental Assessment Act 1982 (NT)
Act 1991 (NT)+
Qld
Aboriginal Cultural Heritage Act 2003 Nature Conservation Act 1992 (Qld)
Sustainable Planning Act 2009 (Qld)
(Qld)+
Torres Strait Islander Cultural Heritage
Act 2003 (Qld)+
Queensland Heritage Act 1992 (Qld)
SA
Aboriginal Heritage Act 1988 (SA)+
Heritage Places Act 1993 (SA)
Planning and Development Act 2007 (ACT)
Development Act 1993 (SA)
Maralinga Tjarutja Land Rights Act 1984
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Anangu Pitjantjatjara Yankunytjatjara Land
Rights Act 1981
Petroleum and Geothermal Energy Act 2000
Tas
Aboriginal Relics Act 1975 (Tas)+
Land Use Planning and Approvals Act 1993
Historical Cultural Heritage Act 1995 (Tas)
Aboriginal Lands Act 1995 (Tas)
(Tas)
National Parks and Reserves Management Act
2002 (Tas)
Nature Conservation Act 2002 (Tas)
Vic
Aboriginal Heritage Act 2006 (Vic)*+
Victorian Heritage Act 1995 (Vic)~
WA
Aboriginal Heritage Act 1972 (WA)
Environmental Protection Act 1986 (WA)
Heritage of Western Australia Act 1990 Museum Act 1969 (WA)
Planning and Development Act 2005 (WA)
(WA)~
Planning and Environment Act 1987 (Vic)
List current as of April 2011
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Appendix 2: Provisions for protection of Indigenous heritage under
Commonwealth, state and territory heritage legislation
Current as of March 2011.
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
COMMONWEALTH
Indigenous areas
Indigenous objects
To be confirmed
Ministerial approval/
delegated to
Department
Emergency declarations
Injunctions/ stop work
for breach of declaration
(s26)
World Heritage List
Ministerial approval
for ‘controlled
actions’249 (with
exemptions where
there is an approved
bilateral
agreement)250
Prohibited actions
Minister can order an
audit to investigate
suspected breach of Act
Offence for breach of
conditions
Federal Court injunction/
stop work
Interim injunction
Fines for breach of the
Act
Imprisonment for breach
of the Act
Remediation orders
Power to publicise a
breach of the Act
Aboriginal and Torres Strait
Islander Heritage Protection
Act 1984
Department of Sustainability,
Environment, Water,
Population and Communities
(DSEWPaC)
Minister for the Environment,
Heritage and the Arts
COMMONWEALTH
Environment Protection and
Biodiversity Conservation Act
1999
and related
Australian Heritage Council
Act 2003
DSEWPaC
Australian Heritage Council
Indigenous Advisory
Committee (and other
advisory committees)
Emergency protection
upon request or
Commonwealth
intervention, for
heritage ‘of particular
significance’247
Natural heritage
places
Historic heritage
places
Indigenous heritage
places
Listed heritage, and
heritage included in
definition of
‘environment’ as part
of Commonwealth
environmental
responsibilities248
National Heritage
List
Commonwealth
Heritage List
Register of the
National Estate
(being phased out,
no current
protection) (s319A
EPBC Act)
Management Plans
Minister for the Environment,
Heritage and the Arts
247
See section 4 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 - purpose of the Act is
protect and preserve from injury or desecration area or objects ‘of particular significance to Aboriginals in
accordance with Aboriginal tradition’
248 See definition of ‘environment’ under the Environment Protection and Biodiversity Conservation Act 1999,
which includes at section 528(d) heritage value of places, and at section 528(e) the social, economic and cultural
aspects of natural and other areas.
249 The Environment Protection and Biodiversity Conservation Act 1999 (Cth) requires that the Minister for the
Environment provides approval before a ‘controlled action’ is undertaken, with ‘controlled actions’ including
actions defined as an action which is likely to have a significant impact on a ‘matter of national environmental
significance’ (which includes heritage on national heritage lists) and Commonwealth land (see ss12-24A and 2627A).
250 Current approved bilateral agreements include Regional Forest Agreements and the Great Barrier Reef
Marine Park Act 1975 (Cth), as well as bilateral agreements in relation to environmental impact assessments.
See Department of Sustainability, Environment, Water, Population and Communities, ‘Bilateral Agreements’
webpage, http://www.environment.gov.au/epbc/assessments/bilateral/index.html (accessed 11 April 2011)
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
COMMONWEALTH
Moveable cultural
objects251 (relating to
import, export and
sale)
National Cultural
Heritage Control
List
Permits
Aboriginal heritage252
Natural heritage
Historic heritage
ACT Heritage
Register (Part 4)
Departmental
conditions on Land
Development
Applications - ACT
Planning and Land
Development
Authority
Inspectors can enter
and search
Inspectors can seize
objects and related
material
Inspectors can arrest
any persons suspected
of committing, or having
committed, an offence
under the Act
Offences for
contravening the
conditions of a permit
Fines up to $200,000
Offences up to 5 years
imprisonment
National Cultural
Heritage Account
Heritage Directions
Provisional registration
Duty to Report
Offence of publishing
restricted information
Ministerial Heritage
Directions
Heritage Orders
Offence of diminishing a
heritage place or object
Agency responsibilities
to maintain heritage
Care and control
agreements
Offence of harming or
desecrating an
Aboriginal object or
Aboriginal Place
Duty to notify of location
of an Aboriginal object
Offence of contravening
a permit
Remediation directions
Offence of aiding a
breach of the Act
Stop Work Orders
Interim Protection
Orders
Protection of Moveable
Cultural Heritage Act 1986
Minister/ Delegated
to Department
Office for the Arts,
Department of Prime Minister
and Cabinet
Natural Cultural Heritage
Committee (advisory)
Prime Minister
ACT
Heritage Act 2004
ACT Attorney General
ACT Heritage Council
ACT Chief Minister’s
Department
NSW
National Parks and Wildlife
Act 1974
Department of Environment,
Climate Change and Water
NSW Minister for the
Environment
Registered places
and objects, with
additional protections
for unregistered
Aboriginal places and
objects (s75)
Aboriginal objects and
related areas253
Declared Aboriginal
places
Declared Aboriginal
areas
Blanket protection for
Aboriginal objects,
whether or not
reported
Heritage
Agreements (s99)
Aboriginal Heritage
Information
Management
System (AHIMS)
Historic Heritage
Information
Management
System (HHIMS)
Aboriginal Heritage
Impact Permits
Conservation
Agreements
Due diligence
standard of care
Development
approvals
Department of
Planning
The Act protects ‘objects that are of importance to Australia, or a particular part of Australia, for ethnological,
archaeological, historical, literary, artistic, scientific or technological reasons’ including objects relating to
Indigenous Australians (s7).
252 The Act allows for the registration and conservation of places and objects of particular significance to
Aboriginal people because of Aboriginal tradition and/or history, including contemporary history. Aboriginal
tradition includes tradition, observance, custom or belief. See criteria for listing under section 10.
253 Under the Act ‘Aboriginal objects' are defined as deposits, objects or material evidence (not being a handicraft
made for sale) relating to Aboriginal habitation of New South Wales 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.
251
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
NSW
Natural heritage
Cultural heritage
Historic/ built
heritage254
NSW State
Heritage Register
State Heritage
Inventory
Heritage Council
approval to damage,
demolish or move
heritage
Duty on owner to
maintain listed heritage
Interim Heritage
Protection Order
Penalties for carrying
out non-approved works
Stop work orders
Penalties for failing to
comply with permit
conditions
Interim heritage orders
Orders to undertake
maintenance on
heritage
Penalties for excavation/
disturbance of protected
place
Civil enforcement
Prohibited development
order of up to 10 years
Limitations on who can
access to sacred sites
Offence to obstruct
access of an Aboriginal
custodian to a site (s47)
Administrator can
acquire land to protect a
site, reserve an area as
Crown land, vest an
area of land in the AAPA
or assist with ‘special
measures’ for
landowners (s41)
Offence of unauthorised
entry onto sacred sites
Offence of work on
sacred sites
Offence of desecration
of sacred sites
Offence of contravention
of site avoidance
conditions
Offence of unauthorised
communication of secret
information
Fines of up to $44,000
or imprisonment for up
to 2 years for an
individual, $220,000 for
an organization
Heritage Act 1977
Heritage Council of NSW
Heritage Branch, Department
of Planning
Registered places,
with some additional
protection for
archaeological relics
Excavation permits
for archaeological
heritage255
NSW Minister for Planning
Conditions on
development
approvals by
Department of
Planning in some
cases
Heritage
Agreements
NORTHERN TERRITORY
Northern Territory Aboriginal
Sacred Sites Act 1989
Aboriginal Areas Protection
Authority (AAPA)
Sacred256 sites
Sacred areas of land
Blanket protection
(i.e. protection exists
whether site is
registered or not)257
Register of Sacred
Sites
Recorded sites (not
yet registered)
Register of
Authority
Certificates
Authority Certificate
for development/
works on lands or
seas in the Territory
from the AAPA in
most cases
NT Minister for Indigenous
Policy
The Act protects items of ‘State heritage significance’ including places, buildings, works, relics, moveable
objects or precincts which are of historical, scientific, cultural, social, archaeological, aesthetic or natural
significance to the State. Indigenous heritage is not specifically included or excluded.
255 Archaeological excavations require a permit if the person knows, or has reasonable cause to suspect, that
they might discover, expose, move, damage or destroy a relic (see s139).
254
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
NORTHERN TERRITORY
The Northern Territory
Heritage Conservation Act
1991
Heritage places,
heritage objects
including human
remains
(historic, natural,
Indigenous and other
heritage)258
Northern Territory
Heritage Register
Section 37
Ministerial Consent
NT Archaeological
Resources
Database
Heritage
Agreements (s36)
Interim Conservation
Orders (s28)
Offences for damage or
desecration
Heritage Branch of the
Northern Territory
Department of Natural
Resources, Environment, the
Arts and Sports
NT Heritage Advisory Council
NT Minister for Heritage
QUEENSLAND
Aboriginal Cultural Heritage
Act 2003
Aboriginal Cultural Heritage
Bodies
Cultural Heritage
Coordination Unit,
Queensland Department of
Environment and Natural
Resources
QLD Minister for Natural
Resources, Mines and
Energy and Minister for Trade
Protection for
registered places and
prescribed
archaeological
heritage (including
Aboriginal
archaeological sites
and objects)259
Significant Aboriginal
areas
Significant Aboriginal
objects
Archaeological or
historic areas and
objects, relating to
Aboriginal
occupation260
Blanket duty of care
for person carrying
out an activity
Conservation
Management Plans
(s31)
Section 39 (J)
Permits to conduct
works on heritage
place or object.
Aboriginal and
Torres Strait
Islander Cultural
Heritage Database
and Reports
Catalogue
Cultural Heritage
Management Plans
Aboriginal and
Torres Strait
Islander Cultural
Heritage Register
Cultural Heritage
Studies
Native Title
Agreement or other
Agreement
Ministerial approval,
General
development
approvals by
Department of
Infrastructure and
Planning
Offence of knowing
harm to heritage
Offence of excavation or
relocation of heritage
Offence of possession
of heritage object
Offence of disclosing
secret or sacred
information
Ministerial power to
issue stop work orders
Ministerial power to
purchase or acquire
Aboriginal heritage
Ministerial power to
make other directions to
preserve heritage
256
A sacred site is defined as 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 (as defined by the Aboriginal Land Rights (Northern
Territory) Act 1976 (NT)..
257
Aboriginal
Areas
Protection
Authority,
Fact
Sheet:
Sacred
Site
Registration,
http://www.aapant.org.au/images/aapaDocs/Fact_Sheet/site_registration.pdf (accessed 9 April 2011).
258 The Northern Territory Heritage Conservation Act 1991 (NT) defines heritage as including places of
prehistoric, protohistoric, historic, social, aesthetic or scientific value, including geological structures, fossils,
archaeological sites, ruins, buildings, gardens, landscapes, coastlines and plant and animal communities or
ecosystems of the northern Territory (see s3).
259
See Northern Territory Heritage Conservation Regulations, Regulation 3.
See section 8 of the Act for the meaning of Aboriginal ‘cultural heritage’. See section 9 for definition of a
‘significant Aboriginal area’ – reflects definition for Torres Strait Islander Act.
260
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
QUEENSLAND
Significant Torres
Strait lslander areas
Significant Torres
Strait Islander objects
Archaeological or
historic areas and
objects261
As above
As above
As above
Queensland
Heritage Register
Development
consent conditions/
development
controls for
properties (Part 5)
Offence for failure to
report archaeological
objects (s56)
Offence for
unauthorised damage to
a protected
archaeological area
(s51)
Restoration orders
Offence for damage,
interference or disposal
of a relic (s46)
Torres Strait Islander Cultural
Heritage Act 2003
Act mirrors the Aboriginal
Cultural Heritage Act (as
above), replacing ‘Aboriginal’
with ‘Torres Strait Islander’
throughout
QUEENSLAND
Queensland Heritage Act
1992
Queensland Heritage Council
Heritage Branch &
Environmental Protection
Agency, Department of
Environment and Resource
Management
Queensland Minister for
Climate Change and
Sustainability
As above
Places or buildings of
cultural significance
(not including places
of ‘solely’ Aboriginal
or Torres Strait
Islander significance,
s61)
Archaeological
heritage including
relics and artefacts
(non-Indigenous)
Certificate of
immunity
Exemption
certificates/ permits
(s45)
General
development
approvals by
Department of
Infrastructure and
Planning
See section 8 of the Act for the meaning of Torres Strait Islander ‘cultural heritage’. See section 9 for definition
of a ‘significant Torres Strait Islander area’, which is defined by reference to Island custom, including any such
customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships, and
includes contemporary history and custom.
261
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
SOUTH AUSTRALIA
Aboriginal sites
Aboriginal objects
Aboriginal remains
Aboriginal traditions
Register of
Aboriginal Sites
and Objects (s9)
Aboriginal Heritage
Agreements
Duty to report (s20)
Fines and penalties for
damage, disturbance,
interference and failure
to protect if in a
collection (s19-22, 28) –
up to $50,000 for a
company and $10,000
for an individual, and six
months imprisonment
Offence to sell without
permission (s29)
Ministerial power to
issue directions
Minister can acquire
land, sites, objects and
records (ss30-34)
Offence to divulge
information contrary to
Aboriginal tradition (s35)
Offence for not
complying with an
Aboriginal Heritage
Agreement (ss37-37D)
Inspectors have powers
to enter lands (ss15-16)
SA Aboriginal Heritage
Fund (s19)
Offence to disturb
designated sites and
artefacts (ss25-29)
Offences for intentional
damage to registered
places (s36)
Stop Work Orders
Enforcement of Heritage
Agreements (s35)
Restoration orders (s37)
No development orders
(s38)
Aboriginal Heritage Act 1988
Aboriginal Heritage Branch,
within the SA Department of
Premier and Cabinet
Assisted by the SA
Department of Aboriginal
Affairs and Reconciliation
In most cases the
Minister can provide
permission for what
would otherwise be
an offence (ss21-22)
Blanket protection,
that is, protection
exists even if heritage
is not recognised on a
register262
SA Minister for Aboriginal
Affairs and Reconciliation
SOUTH AUSTRALIA
Heritage Places Act 1993
SA Department of
Environment and Natural
Resources
Heritage places and
objects (specifically
‘non-Aboriginal’
heritage)263
Protection for State
Heritage Places
SA Heritage
Register
Heritage
Agreements (s32)
Development
approvals with
conditions
SA Heritage Council
SA Minister for Environment
and Conservation
Protection exists for ‘all Aboriginal sites, objects and remains in South Australia that are of significance to
Aboriginal tradition, archaeology, anthropology and/or history’ (s3).
263 The Heritage Places Act 1993 (SA) is ‘an Act to make provision for the identification, recording and
conservation of places and objects of non-Aboriginal heritage significance; to establish the South Australian
Heritage Council; and for other purposes’ (see long title of the legislation). The definitions and other provisions of
the Act also make it clear that it only relates to non-Aboriginal heritage.
262
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
TASMANIA
Aboriginal relics264
Aboriginal Heritage
Permits
Aboriginal Relics Act 1975
Blanket protection for
‘relics’ (created prior
to 1876)
Tasmanian
Aboriginal Site
Index
Department
responsibility to maintain
protected areas
Offence of failure to
notify of a relic
Minister can acquire
relics
Offence of unauthorised
damage, removal, sale
or excavation of relics
Tasmania Heritage
Register
Heritage
Agreements
Penalties for carrying
out non-approved works
Stop work orders
Penalty for failing to
comply with heritage
standards
Enforcement of Heritage
Agreement orders
Restoration orders
Prohibited work orders
Penalty for false or
misleading statements
Duty to report (s24)
Offence of harm to
Aboriginal cultural
heritage (s63)
Offence of activity likely
to harm (s28) Aboriginal
cultural heritage (s28)
Restoration orders (s30)
Interim Protection
Declarations
Ongoing Protection
Declarations
Designated areas of
high cultural sensitivity
(Regs)
Ministerial audits of
plans
Inspectors powers to
enter, seize and search
Aboriginal Heritage
Tasmania, Department of
Primary Industries, Parks,
Water and Environment
Declared protected
areas containing
relics (Part III)
Aboriginal Relics Advisory
Council
Director of National Parks and
Wildlife
Tas Minister for the
Environment, Parks and
Heritage
TASMANIA
Historic heritage
places
Historic Cultural Heritage Act
1995
Approved works
Tasmanian Heritage Council
Heritage Tasmania,
Department of Primary
Industries, Parks, Water and
Environment
VICTORIA
Aboriginal Heritage Act 2006
Registered Aboriginal Parties
Victorian Aboriginal Heritage
Council
Aboriginal Affairs Victoria,
within the Department of
Planning and Community
Development
Aboriginal places265
Aboriginal objects
Aboriginal human
remains
Victorian Aboriginal
Heritage Register
(s114)
Aboriginal Cultural
Heritage and
Registry
Information System
(ACHRIS)
Cultural Heritage
Permits (s24)
Cultural Heritage
Management Plans
(s49), Environmental
Effects Statements
Cultural Heritage
Agreements (s68)
Some exempt
activities
Vic Minister for Aboriginal
Affairs
Under section 2, ‘relics’ include artefacts, objects, sites or places and the remains of a person of Aboriginal
descent – but only objects made or created before 1876.
265 An Aboriginal place is defined as an area in Victoria that is of cultural significance to the Aboriginal people of
Victoria, and includes both natural formations, archaeological sites and the areas associated with objects (see
s5). This can include buildings and structures.
264
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State of Indigenous cultural heritage 2011
JURISDICTION
Legislation
Agency
Minister responsible
Types of heritage
recognised
Registers and
Databases
Permits, plans
and approvals
Examples of other
forms of protection
for heritage
available
VICTORIA
Cultural heritage
places and areas
Cultural heritage
objects
Archaeological
heritage
Victorian Heritage
Register
Heritage Inventory
Heritage Permits
Some
Aboriginal
places
and
sites
(archaeological,
anthropological,
special significance)
Aboriginal objects266
and objects that ‘so
nearly’ resemble an
object
of
sacred
significance they are
capable
of
being
mistaken for such an
object
Register
of
Aboriginal sites267
Offence of harm/ work
without a permit
Offence of failing to
safeguard a relic
Designated World
Heritage Environs Areas
Offence for failing to
comply with conditions
of a permit
Within the provisions of
the AHA the following
applies:
Offence to excavate,
damage,
destroy,
conceal or in any way
alter an Aboriginal site
(s17)
Duty to report (s15)
Site can be declared a
‘protected area’ (s19)
Covenants over land
(s27)
Minister
power
to
compulsory
acquire
objects (s198)
Restrictions on use of
objects (s48-9)
Victorian Heritage Act 1995
Heritage Council of Victoria
Heritage Victoria, Department
of Planning and Community
Development
WESTERN AUSTRALIA
Aboriginal Heritage Act 1972
Registrar of Aboriginal Sites
(for administrative purposes
located at the Department of
Indigenous Affairs)
Minister for Indigenous Affairs
Aboriginal Cultural Material
Committee (advisory)
WESTERN AUSTRALIA
Heritage of Western Australia
Act 1990
Office of the Heritage Council
of WA
Definition of heritage
values protected by
the Act refer to ‘any
place of importance
and
significance
where persons of
Aboriginal descent, or
appear to have, left
any object … or made
or adapted for use
….,
any
purpose
connected
with
traditional
cultural
life….’
Built/ historic heritage
places
(not
specifically excluding
Indigenous places but
these ‘not a focus’)268
Heritage Certificates
Consents to harm,
excavate, disturb,
sell, possess relics
Section
18
Ministerial consent
for development
Section 16 permit for
research purposes
Regulation
10
approval
for
conservation works
WA State Register
of Heritage Places
Heritage
Agreements
Development
consents/ conditions
WA
Planning
Commission or Local
Government
WA Minister for Heritage
Heritage Council of WA
Offence of damaging or
despoiling
a
place
entered on the State
Register of Heritage
Places
Restoration orders
Development
moratoriums
Stop Work Orders
Conservation Orders
Fines up to $1,000,000
including daily penalties
266
Section 5 of the Act states that the Act applies to both historical and contemporary Aboriginal cultural
significance.
267 Aboriginal ‘sites’ refers to Aboriginal objects and places.
268 Heritage Council of Western Australia, ‘Criteria for Assessment’ webpage,
http://www.heritage.wa.gov.au/assets/files/General_Publications/Criteria%20for%20assessment.pdf (accessed 9
April 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Appendix 3: Key legislative provisions for Indigenous access, use
and management of natural resources, by jurisdiction
Source: Smyth, D., Isherwood, M and Schnierer, S (unpublished) Right to Use Country: Towards a
freestanding statutory right for Traditional Owners to non-commercial access to and use of natural
resources in Victoria, Final Report to the Victorian Department of Justice 2010.
Access
Use
Management
Commonwealth
Aboriginal Land Rights (Northern Territory) Act 1976: see Northern Territory (below)
Native Title Act 1993, section 211: Preserves native title rights to hunt, fish, gather or
undertake other cultural or spiritual activities where these activities would normally be
restricted by Commonwealth, state or territory legislation: s.211(1) and (3). The
Commonwealth retains the power to override these native title rights and interests by
passing a law that requires a licence, permit or other authority to be granted for
research, environmental protection, public health or safety purposes: s.211(1)(ba).
Environment Protection and Biodiversity Conservation Act 1999: Express
acknowledgement that native title rights, including rights under section 211, are not
affected by the EPBC Act (s.8). Allows for traditional Indigenous use of Commonwealth
reserves for “... hunting or food gathering (except for purposes of sale)...” and
“ceremonial and religious purposes”, subject to overriding regulations expressly applying
to traditional use, for biodiversity conservation purposes (s.359A). Also allows for the
issuing of permits to historically affiliated Indigenous people in relation to significant
Indigenous tradition where the survival of the species is not at risk (ss.200, 201(3)(c),
201(4), 216(3)(c), 215, 257, 258(3)(c)). Section 201(4) defines "Indigenous tradition" as
“the body of traditions, observances, customs and beliefs of Indigenous persons
generally or of a particular group of Indigenous persons”.
Environment Protection and Biodiversity Conservation Act 1999: Includes the
object of, among other things, recognising and promoting the role of Indigenous people
in the conservation and ecologically sustainable use of Australia’s biodiversity (s.3).
Regard must be had to “the role and interests of Indigenous people in the conservation
of biodiversity” in developing the content of recovery plans (s.270(3)(e)) and threat
abatement plans (s.271(3)(e)). The Minister must also consider “the role and interests of
Indigenous people...” before entering into a bilateral agreement about threatened
species (s.49A(c)). Allows for the development of Management Plans for
Commonwealth reserves (e.g. Kakadu NP, Uluru-Katatjuta NP, Booderee (Jervis Bay)
NP) on Indigenous lands (Subdivision D) and establishment of Management Boards on
those reserves (Subdivision F). Establishes an Indigenous Advisory Committee to
advise the Minister in taking into account “the significance of Indigenous peoples‟
knowledge of the management of land and the conservation and sustainable use of
biodiversity (ss.505A and 505B) (Divisions 2A and 3).
Water Act 2007: In developing the Murray-Darling Basin Plan on sustainable water use
and management, the Minister is required to take into account (inter alia) “social, cultural
and other public benefit issues...” (s.21(4)).
Native Title Act 1993: Native title groups may enter into Indigenous Land Use
Agreements (ILUAs) (Area Agreements) in relation to, inter alia, the exercise of native
Australia ■ State of the Environment 2011 Supplementary information
154
State of Indigenous cultural heritage 2011
title rights and interests (including rights to hunt, fish and gather) in relation to an area
(s.24CB(d)), including through co-management or joint management regimes, for
example. However, ILUAs can extinguish (in whole or in part) native title rights, by the
surrender of those rights to the Commonwealth, state or a territory (s.24CB(e)).
Access
Use
Management
Victoria
Fisheries Act 1995: One of the objectives is to facilitate access to fisheries resources
for commercial, recreational, traditional and non- consumptive uses: s.3(d).
Wildlife Act 1975: The Secretary can authorise a person to take, hunt, destroy, buy,
sell, breed etc wildlife if satisfied it is necessary (inter alia), “...for aboriginal cultural
purposes”: s.28A(1)(e). The authorisation may be subject to conditions and limitations
imposed by the Secretary or by regulations: s.28A(2). Under s.28G (as per an
amendment in 2008) the Governor in Council, on the advice of the Minister, can
authorise a “class of persons (which could, for example, be all Traditional Owners in
Victoria) to take wildlife for, among other things, Aboriginal cultural purposes”.
Fisheries Act 1995: A general permit may be issued to a person “... to take or possess
fish (in areas where recreational fishing is authorised under this Act) for a specified
Indigenous cultural ceremony or event”: s.49(2)(h). The Secretary may cancel a general
permit at any time and without notice:s.49(8). A “group recreational fishery licence” may
be issued to the representative of a group for the take of rock lobster or fish from inland
or marine waters for non-commercial purposes only: s.46. The Secretary may cancel a
general permit at any time and without notice: s.46(5).
Charter of Human Rights and Responsibilities Act 2006, section 19(2): Recognises
that Aboriginal people hold distinct cultural rights, and must not be denied the right “...to
maintain their distinctive spiritual, material and economic relationship with the land and
waters and other resources with which they have a connection under traditional laws
and customs”: s.19(2)(d).
Conservation, Forests and Lands Act 1987, Part 8A: The Minister, by determination,
may establish a Traditional Owner Land Management Board for any public land: s.82B,
with the objective of enabling the knowledge and culture of the traditional owner group of
the appointed land to be recognised in the management of the land:s.82E. Any function,
power or duty that a Traditional Owner Land Management Board has is subject to the
provisions of the Act under which the appointed land is managed: s.82J.
Fisheries Act 1995: Consultative processes under the Act include seeking
representative advice from Indigenous groups: s.3A(1)(f)(v)). A Fisheries Consultative
Body has been established to provide advice on matters requiring consultation under the
Fisheries Act. The Consultative Body comprises five (5) persons, including one (1)
member who has skills, expertise and knowledge regarding Aboriginal Fishing. An
Aboriginal Fishing Strategy is currently under development.
National Parks Act 1975: The Management Strategy 2003-2010 for 13 Marine Parks
and 11 Marine Sanctuaries established under the Act includes a strategy for the
recognition of Indigenous cultural values (but not resource use) in the management of
these marine areas.
New South Wales
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State of Indigenous cultural heritage 2011
Access
Use
Aboriginal Land Rights Act 1983: Local Aboriginal Land Councils can negotiate
agreements with any land owner for access by an Indigenous group for the purpose of
hunting, fishing and gathering: s.47. The NSW Land & Environment Court can confer
access permits where access has been denied to the Local Aboriginal Land Council:
s.48.
National Parks and Wildlife Regulation 2009, Part 7: Provides an exemption from
prosecution under the National Parks and Wildlife Act 1974for Aboriginal people hunting
and gathering for domestic purposes. The exemption also applies to the dependents of
Aboriginal people, whether or not those dependents are Aboriginal. The exemption does
not apply to the taking of raptors, parrots or threatened species, populations and
ecological communities: Reg 72.
Aboriginal Land Rights Act 1983: See Access, above. Aboriginal land held by a Local
Aboriginal Land Council under the Act includes rights to minerals except gold, silver,
coal and petroleum. Local Aboriginal Councils can negotiate terms of mining including
royalties and fees to be paid: s.45.
Water Management Act 2000: Includes as an object to recognise and foster “...
benefits to the Aboriginal people in relation to their spiritual, social, customary and
economic use of land and water”: s.3(c)(iv). Exempts native title holders from the
requirement to obtain a licence or approval to use water ―in the exercise of native title
rights‖ on their land (except for the construction of a dam or bore). Regulations can
specify the maximum amount of water that can be taken by native title holders in any
one year for domestic or traditional purposes: s.55.
Management
Fisheries Management Act 1994: An Aboriginal person is exempt from paying a
recreational fishing fee:s.34C(2)(f). The Minister may issue a special permit for
Aboriginal cultural fishing purposes: s.37)(1)(c). It is a defence to prosecution under the
Act or Regulations if the act or omission of the person was authorised under the permit:
s.37(3). Recent amendments to the Act include the insertion of a new s.21AA, which will
create a free-standing right for Aboriginal people to take or possess fish for the purposes
of Aboriginal cultural fishing, subject to any Regulations. This free-standing right will
operate alongside the permitting regime under s.37.
National Parks and Wildlife Act 1974: Part 4A provides for the Aboriginal ownership,
lease-back and joint management of certain national park. Section 30K allows for land to
be reserved as an “Aboriginal area”, allowing its use by Aboriginal people for cultural
purposes. The Director General has the care, control and management of all Aboriginal
areas, other than for jointly managed national parks (under Part 4A): s.63.
Fisheries Management Act 1994: The recently amended Act includes, as a secondary
object, “... to recognise the spiritual, social and customary significance to Aboriginal
persons of fisheries resources, and to protect and promote the continuation of,
Aboriginal cultural fishing”: s.3(2)(h). Section 4(1) defines Aboriginal cultural fishing as
“... fishing activities and practices carried out by Aboriginal persons for the purpose of
satisfying their personal, domestic or communal needs, or for educational, ceremonial or
other traditional purposes, and which do not have a commercial purpose”. A statutory
Aboriginal Cultural Fishing Advisory Committee has been established under s.229 of the
Fisheries Management Act.
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Access
Use
Management
South Australia
Pastoral Land Management and Conservation Act 1989: Recognises the right of
Aboriginal people to “enter, travel across or stay on pastoral land for the purpose of
following the traditional pursuits of the Aboriginal people‖, including camping, as long
as at least 1km from homestead buildings and 500m from dams or other stock watering
points”: s.47. An ILUA in force in relation to particular pastoral land may also confer
rights to enter, travel across or stay on the land in addition to the rights conferred by
this section, or may remove or qualify these rights: s.47(3). The Minister must maintain
on a public register information relating to the access of Aboriginal persons onto
pastoral land the subject of an ILUA: s.48A). The Pastoral Board can approve the lease
of pastoral land for the “primary purpose of traditional Aboriginal pursuits”:
s.22(6)(d)(ii).
Fisheries Management Act 2007: Recognises a new category of fishing termed
“Aboriginal traditional fishing” (dealt with under its own Division 2) for the purpose of
satisfying “... personal, domestic or non-commercial, communal needs, including
ceremonial, spiritual and educational needs, and using fish and other natural marine
and freshwater products according to relevant aboriginal custom”: s.3(1). See
Management (below).
Natural Resources Management Act 2004: Consideration must be given to
Aboriginal heritage and “... the interests of the traditional owners of any land or other
natural resources‖ as one of the various principles to be observed in achieving
ecologically sustainable development”: s.7(3)(h). In determining the composition of
Regional NRM Boards, the Minister must give consideration to nominating persons
with knowledge, skills and experience in a range of areas, including (inter alia) “...
Aboriginal interest in the land and water, and Aboriginal heritage”: s.25(4)(a)(ix). One of
the nine (9) members of the NRM Council must be nominated after the Minister has
consulted with bodies that are suitable to represent the interests of Aboriginal people
for the purposes of the Act: s.13(2)(e), and the Minister must give consideration to the
appointment of Council members with knowledge, skills and experience of “Aboriginal
interests in land and water, and Aboriginal heritage”: s.13(5)(a)(viii).
River Murray Act 2003: Includes in its objects “... to respect the interests and
aspirations of Indigenous peoples with an association with the River Murray and to give
due recognition to the ability of those Indigenous people to make a significant
contribution to the promotion of the principles of ecologically sustainable development
in relation to the use and management of the River Murray”: s.6(1)(f) and s.7(5)(c). The
Minister must consult with “... Indigenous people with an association with the River
Murray” in advancing the objectives of the Act: s.9(1)(d), and should give special
consideration to their needs in consulting them: s.9(2)(b).
Fisheries Management Act 2007: “Aboriginal traditional fishing” means “fishing
engaged in by an Aboriginal person for the purposes of satisfying personal, domestic
or non-commercial, communal needs, including ceremonial, spiritual and education
needs, and using fishing and other natural marine and freshwater products according
to relevant Aboriginal custom”: s.3. Native title parties to an ILUA with the State may
make an “Aboriginal traditional fishing management plan” to be gazetted for specified
waters and fisheries: s.60. Section 128 of the Act allows the Governor to make
regulations for the conservation and management of fisheries and the regulation of
fishing. The regulations may, inter alia, “... identify zones within an area of waters to
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which an ‘Aboriginal traditional fishing management plan’” applies:s.128(2)(c), and
require persons who engage in “Aboriginal traditional fishing” activities to hold a permit
issued by the Minister: s.128(2)(d). The Government may only make regulations
relating to “Aboriginal traditional fishing” on the recommendation of the Minister:
s.128(3). The Minister must be satisfied that the regulations are necessary or desirable
for the purpose of giving effect to an “Aboriginal traditional fishing management plan”,
and are consistent with the plan and the ILUA under which the plan was made. The
Minister must also have consulted the native title group and given due consideration to
any comments made by the group in relation to the regulations. To date, no regulations
have been made under this provision of the Act. Section 11(4) of the Act requires the
Fisheries Council of South Australia to include at least one person with knowledge and
experience of “Aboriginal traditional fishing”.
Access
Use
Management
Access
Tasmania
No specific legislative provisions.
Aboriginal Lands Act 1995, section 27(2A): Land vested in the Aboriginal Land
Council of Tasmania includes “... the right to minerals, other than oil, atomic
substances and geothermal substances, within the meaning of the Mineral Resources
Development Act 1995, and to helium, to a depth of 50 metres”.
Living Marine Resources Management Act 1995, section 3: Recognises noncommercial “Aboriginal activity” in relation to ―”.. the sea and its resources”, as well as
the taking of prescribed fish for making artefacts for sale. Authorisations under the Act
do not preclude Aboriginal people engaging in “Aboriginal activities”: s.10, and
Aboriginal people engaging in “Aboriginal activities” are exempted from the
requirement to hold a fishing licence: s.60(2).
No specific legislative provisions.
Western Australia
Wildlife Conservation Act 1950: Access rights for hunting and gathering purposes
may be implied under s.23(1) of the Act (see Use, below), regarding entry upon Crown
land “or upon any other land, not being a nature reserve or wildlife sanctuary”.
However, the provision does require “the consent of the occupier of that land”.
Land Administration Act 1997, section 104: Provides an express “reservation in
favour of Aboriginal persons”, enabling them to “at all times enter upon any unenclosed
and unimproved parts of the land under a pastoral lease to seek their sustenance in
their accustomed manner”. This reservation dates from 1934.
Use
Fish Resources Management Act 1994: There is a general power in the Act for the
Minister to grant an exclusive licence “to any person to take fish from a specified area
of coastal waters and the foreshore above high water-mark”: s. 251, but not for fishing
in a marine nature reserve, marine park or marine management area: s.253.
Wildlife Conservation Act 1950: Section 23 permits “a person of Aboriginal descent”
(as defined in s.4 of the Aboriginal Affairs Planning Authority Act 1972) to take fauna or
flora upon Crown land, or upon any other land except for nature reserves or wildlife
sanctuaries, for food for individual or family consumption, but not for sale. The
Governor may, if satisfied that the provisions of this section are being abused or that
any species of fauna or flora being taken under this authority is likely to become unduly
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depleted, suspend or restrict the operation of this section by regulation. The CEO of
the agency may also issue a certificate authorising the sale of the skins of kangaroos
lawfully taken for food under this section: s.23(2). However, Aboriginal person may be
liable to prosecution if firearms are used when hunting on Crown land (Land
Administration Act 1997, s.267).
Management
Fish Resources Management Act 1994: An “Aboriginal person” is not required to
hold a recreational fishing licence if fishing for non-commercial purposes for his/her
family in accordance with “continuing Aboriginal tradition” (s.6). “Aboriginal person” is
defined under section 4 of the Act to mean “a member of the Aboriginal race in
Australia”. The Minister also has wide powers to grant exemptions from the Act: s.7.
Land Administration Act 1997, section 97: The Minister must appoint one (1) person
to the eight (8) member Pastoral Lands Board on the basis that they are an Aboriginal
person with experience in pastoral leases.
Fish Resources Management Act 1994: The fifteen (15) member Recreational
Fishing Advisory Committee is to include one (1) Aboriginal person who is considered
by the Minister to represent the interests of Aboriginal people: s.33. A draft Aboriginal
Fishing Strategy was released in 2003, but has not yet been formally implemented.
Access
Use
Queensland
Nature Conservation (Protected Areas Management) Regulation 2006, section
37: An “Aboriginal tradition authority” authorises each relevant person under the
authority to take, use, keep and interfere with, under Aboriginal tradition, the cultural or
natural resources stated on the permit in the protected area, or the part of a protected
area, stated on the permit. An Aboriginal tradition authority may authorise entry into a
stated restricted access area, though does not authorise entry into areas closed to the
public.
Aboriginal and Torres Strait Islander Communities (Justice, Land and Other
Matters) Act 1984: Section 61(1) of the Act allows for residents of Indigenous
community government or Indigenous Regional Council (IRC) areas to “take marine
products or fauna by traditional means for consumption by members of the
community”, subject to sections 62 and 93 of the Nature Conservation Act 1992. The
provision does not authorise “the sale or other disposal for gain of any marine product
or fauna...”: s.61(2). Section 62 enables the community government or IRC to
authorise the removal of certain forest products or quarry material from Aboriginal land
for use in community government or IRC areas under agreement with the grantees of
the land, or following payment of compensation as determined by the Land Court.
Section 63 provides a statutory right for residents of community government areas to
take forest products or use quarry materials from trust land for non-commercial
purposes, without requiring the payment of royalties.
Nature Conservation Act 1992: Section 62 of the Act prohibits the taking etc of
cultural and natural resources of protected areas other than under an Indigenous
Management Agreement, or any conservation agreement or covenant applicable to the
area. An uncommenced provision, s.93, makes it an offence for an Aboriginal or Torres
Strait Islander person to take, use or keep protected wildlife in breach of a
conservation plan that expressly prohibits the taking using or keeping of protected
wildlife under Aboriginal tradition or Island custom.
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Management
Nature Conservation (Protected Areas Management) Regulation 2006: Provides
for “Aboriginal tradition authorities” to be given to relevant Aboriginal corporations:
s.35, to take, use, keep or interfere with cultural or natural resources in protected
areas, providing the purpose for the taking is of “particular significance under
Aboriginal tradition...”. Section 32 specifies the circumstances under which an
“Aboriginal tradition authority” cannot be granted, in the interests of biodiversity
conservation. Section 33 prohibits the grant of an authority in circumstances where
weapons will be used or harm may be caused to visitors.
Nature Conservation Act 1992: Stresses cooperative involvement with Aboriginal and
Torres Strait Islanders for the purposes of conservation: s.5(f). Contains provisions for
the management of Aboriginal and Torres Strait Islander land declared as national
parks or protected areas. Protected wildlife is to be managed to, inter alia, ensure that
any use of the wildlife by Aboriginal or Torres Strait Islander people in accordance with
tradition and custom, is ecologically sustainable: s.73(b).
Cape York Peninsula Heritage Act 2007: Allows for the declaration of “Indigenous
community use areas” in which Indigenous communities may undertake appropriate
economic activities, as well as the establishment of committees to advise the Ministers
about relevant matters: s.4.
Aboriginal Land Act 1991, Part 5B, Division 1: “Indigenous Management
Agreements” on Aboriginal Land in the Cape York Region may include provisions
regarding Indigenous use of natural resources.
Biodiscovery Act 2004, Part 5: Allows for benefit-sharing agreements between the
State and a biodiscovery entity for the use of native biological material.
Water Act 2000: Includes in its definition of “sustainable management” of water,
management that contributes to (inter alia), “... recognising the interests of Aboriginal
people and Torres Strait Islanders and their connection with the landscape in water
planning”: s.10(2)(v).
Access
Use
Management
Queensland (Great Barrier Reef)
No specific legislative provisions. See Use, below.
Fisheries Act 1994, section 14: Operates as a defence for Aboriginal people catching
fish for non-commercial, communal use only. Also enables the fishing apparatus used
when fishing under Aboriginal tradition or Island custom to be prescribed under
regulation (governing recreational fishing), and allows for certain areas to be closed to
all fishing activity, including customary fishing (subject to a permit issued at the
discretion of the chief executive).
The recent amendments to section 14 removed references in the former section 14(2)
to using management plans to regulate acts done under Aboriginal tradition or Islander
custom, and repealed section 14(3) to remove the requirement for cooperation with all
Indigenous people. This was replaced in favour of the consultation requirements
mandated under the Statutory Instruments Act.
Marine Parks Act 2004: Conservation of the marine environment under the Act is to be
achieved through, inter alia, the cooperative involvement of interested groups and
persons, including members of Aboriginal and Torres Strait Islander communities:
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s.5(2)(c). The Chief Executive may enter into cooperative management agreements
with people having a “special interest”, including native title, to a marine park or natural
and cultural resources: s.41.
Great Barrier Reef Marine Park Act 1975 (Cth): Traditional use activities in the Great
Barrier Reef Marine Park are managed under the Great Barrier Reef Marine Park Act
1975 and Regulations 1983. The Act requires the membership of at least one
Indigenous person on the Board of the GBRMPA: s.10(6A).
The Traditional Use of Marine Resources Agreements (TUMRA) scheme was
developed under the recently amended Regulations and Zoning Plan 2003, which
recognise that under s.211 of the Native Title Act 1993, native title holders may
undertake traditional use of marine resources in the Park for the purpose of satisfying
personal, domestic or communal needs. TUMRAs describe how Traditional Owner
groups work with government to manage traditional use activities in sea country, and
aim to promote Indigenous stewardship as an aspect of co-management of the habitats
of protected species, including dugongs and turtles.
Currently, four (4) TUMRAs have been accredited by the GBRMPA, including the:
Girringun TUMRA, accredited in December 2005; Dharumbal TUMRA – Woppaburra
section, June 2007; and the Mamu and Wuthathi TUMRAs, June 2008. The GBRMPA
is now working in conjunction with these Traditional Owner groups to implement the
provisions of the TUMRAs.
Access
Use
Management
Queensland (Torres Strait)
No specific legislative provisions. See Use, below.
Torres Strait Fisheries Act 1984 (Cth): Section 16 empowers the Minister to prohibit
the taking of marine flora and fauna and related activities. Fisheries Management
Notice No. 65 was made in accordance with section 16, effectively prohibiting the taking
of dugong in the Torres Strait dugong fishery except by people taking dugong in the
course of traditional fishing. The Notice restricts equipment to the use of a hand thrown
spear on a Traditional Inhabitant Boat less than or equal to 6m long. It also provides
scope for the Minister to regulate who conducts the dugong and turtle fisheries, and the
conditions upon which they are to be conducted, as well as establishing a Dugong
Sanctuary in an area to the west of the Torres Strait.
The Minister may declare a method of fishing, or the use of specified equipment or a
boat as “not traditional fishing”: s.3(2).
Torres Strait Fisheries Act 1994 (Qld): The Torres Strait Fisheries Act 1984 does not
apply in the Protected Zone or any area where there is a Commonwealth-State
Management Plan. Traditional fishing has the same meaning as the Commonwealth
Act, and is constrained by any declaration by the Federal Minister that a certain type of
fishing is “not traditional”.
Torres Strait Fisheries Act 1984 (Cth): Implements the Australian government’s
obligations arising from the Torres Strait Treaty. A key objective of the Torres Strait
Treaty is to protect the traditional way of life and livelihood of traditional inhabitants,
including their rights in relation to traditional fishing.
“Traditional fishing” means “...the taking, by traditional inhabitants for their own or their
dependants' consumption or for use in the course of other traditional activities, of the
living natural resources of the sea, seabed, estuaries and coastal tidal areas, including
dugong and turtle.
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"Traditional inhabitants" means “... in relation to Australia, persons who- (i) are Torres
Strait Islanders who live in the Protected Zone or the adjacent coastal area of Australia,
(ii) are citizens of Australia, and maintain traditional customary associations with areas
or features in or in the vicinity of the Protected Zone in relation to their subsistence or
livelihood or social, cultural or religious activities”.
The Act as amended in 2007 includes explicit management priorities, including: (a) to
acknowledge and protect the traditional way of life and livelihood of traditional
inhabitants, including their rights in relation to traditional fishing... (c) to adopt
conservation measures necessary for the conservation of a species in such a way as to
minimise any restrictive effects of the measures on traditional fishing... (g) to have
regard, in developing and implementing licensing policy, to the desirability of promoting
economic development in the Torres Strait area and employment opportunities for
traditional inhabitants‖ (s.8).
The Protected Zone Joint Authority and the Minister are required to seek the views of
traditional inhabitants represented on the Joint Advisory Council in relation to the
management of fisheries in and in the vicinity of the Torres Strait Protected Zone where
the interests of traditional inhabitants may be affected (ss.39, 13).
Access
Northern Territory
Pastoral Land Act, section 38: Pastoral leases in the NT are subject to a “reservation
in favour of the Aboriginal inhabitants of the Territory”, permitting them, by Aboriginal
tradition, to: enter and be on the leased land; to take and use water from the natural
waters and springs on the leased land; and subject to any other law in force in the
Territory, to take or kill for food or ceremonial purposes animals, ferae naturae, and to
take for food or ceremonial purposes, vegetable matter growing naturally, on the leased
land.
Pastoral Land Act, section 70(2): Enables the sub-leasing of pastoral leases for
“Aboriginal community living purposes”.
Pastoral Land Act, section 113: Enables travel through pastoral leases to access
Aboriginal land, when there are no alternative access routes. The section provides a
dispute resolution process by the Chair of the Pastoral Land Appeal Tribunal in the
event that agreement cannot be reached between the pastoral lessee and the relevant
Land Council regarding an appropriate access route.
Pastoral Land Act, section 132: Protects rights over the land that existed prior to the
creation of a pastoral lease, which effectively protect native title rights relating to access
and natural resource use. Confirmed by the Wik High Court decision in 1996.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth): Section 71(1) of the Act
recognises traditional rights to use or occupation of Aboriginal land, to the extent that
the entry, occupation or use is in accordance with Aboriginal tradition. This provision
does not, however, authorise entry, use or occupation that would interfere with the use
or enjoyment of an estate or interest in land held by non-Aboriginal parties: s.71(2).
Aboriginal Land Act 1980: The Northern Territory Administrator may declare sea
closures on seas adjoining and within 2 kilometres of Aboriginal land, restricting entry to
only those Aboriginal people entitled by Aboriginal tradition to enter and use the seas in
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State of Indigenous cultural heritage 2011
accordance with Aboriginal tradition: s.12.
Use
Territory Parks and Wildlife Conservation Act 2005, section 122: Contains a ‘carve
out’ to protect “...traditional use of land and water by Aboriginals... in accordance with
Aboriginal tradition for hunting, food gathering (otherwise than for the purpose of sale)
and for ceremonial and religious purposes”.
Fisheries Act 1995, section 53: Contains a ‘carve out’ to exempt non-commercial,
traditional resource use and access to resources (except to aquaculture areas). Nothing
in the Act operates to “limit the right of Aboriginals who have traditionally used the
resources of an area of land or water in a traditional manner from continuing to use the
resources in that area in that manner”. This is described on the Departmental website
as “Aboriginal subsistence fishing” and “community fishing”. “Traditional economic
activity” is distinguished from “commercial fishing”.
Fisheries Regulations, section 183: Coastal Aboriginal communities and Land Trusts
may apply for an “Aboriginal coastal licence” to fish and sell fish for community benefit,
except for “managed species” subject to commercial quotas (e.g. barramundi and mud
crab). Applicants must be permanent residents of land granted under the Aboriginal
Land Rights (NT) Act 1976 (Cth) who have the approval of the Council (or the approval
of persons accepted by the majority of the community or group to be its leaders). Only
one, non-transferable “Aboriginal coastal licence” is available to each community or
group: ss.184,185. Fish taken under an “Aboriginal coastal licence” may only be sold
within the relevant area of land granted to the community or group, and not for resale:
ss.188-191.
Management
Pastoral Land Act, section 93: The Community Living Areas Tribunal includes
representatives nominated by relevant Land Councils.
Territory Parks and Wildlife Conservation Act 2005: The recently amended Act
contains a new Part III, Joint Management of Certain Parks & Reserves. Section 73 of
the Act allows for the Commission enter into agreements with Aboriginal Land Councils
(or any other organisation that controls or manages the land or in which the land is
vested) regarding the management of land occupied or used by Aboriginals in
accordance with Aboriginal tradition “... to protect and conserve wildlife on the land and
to protect the natural features of the land”. An agreement under section 73(1) may
provide for financial assistance by the government to achieve the object of the
agreement: s.73(1A), and may provide for the granting of permits in relation to the
taking and using of wildlife in accordance with Aboriginal tradition on the land to which
the agreement relates: s.73(1B).
Access
Use
Management
Access
Use
A.C.T
No specific legislative provisions.
No specific legislative provisions.
Traditional owners involved in the joint management of Namadgi National Park
Jervis Bay Territory
Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth): By-laws can be
developed regarding, inter alia, access to Aboriginal land: s.52A.
Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth): By-laws can be
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State of Indigenous cultural heritage 2011
Management
developed regarding, inter alia, the use of natural resources on Aboriginal land: s.52A.
Traditional use of the area for hunting, food gathering and ceremonial purposes is
allowed in areas of the park determined by the Director and the Aboriginal traditional
owners.
Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth): Provides for Aboriginal
land granted to be leased back to the Director for the Booderee (Jervis Bay) National
Park and jointly managed through the Booderee Board of Management. By-laws can be
developed regarding, inter alia, the management of natural resources on Aboriginal
land: s.52A.
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State of Indigenous cultural heritage 2011
Appendix 4: Overview of reviews and amendments to Indigenous
heritage legislation, by jurisdiction
S. Ellsmore
Introduction
The following summary of reviews and amendments to Indigenous heritage legislation in the
reporting period is listed by jurisdiction. The information is current as of March 2011.
Confirmation of the information in this appendix was sought from the Commonwealth, states
and territories, but responses were not received in time for inclusion in this report.
Changes to Commonwealth heritage legislation in the reporting
period
A major review of the key national Indigenous heritage legislation – the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984 (the ATSIHP Act) – was undertaken in
2009 and 2010.269
A previous major review of the legislation in 1996 (the ‘Evatt Review’) had recommended
major changes to the ATSIHP Act, after finding significant failings with the protective regime
and the processes under the ATSIHPAct, but the recommendations from this review had not
been enacted.270
The Commonwealth put forward a number of recommendations for public consultation as
part of the 2009 ATSIHP Act Review, including the establishment of national standards for
the protection of Indigenous heritage, with states and territories able to become ‘accredited’
if they met this standard, and removing the Commonwealth Minister’s ability to intervene
with emergency protection for those states.271 The Commonwealth’s recommendations
picked up some, but not many, of the recommendations from the earlier Evatt Review.
Following consultation in 2009 and 2010, as of April 2011 there was a lack of consensus
amongst stakeholders (both Indigenous and non-Indigenous) regarding the standards and
other changes being considered.272 A timeline for finalising the ATSIHP Act Review had not
been announced.
269
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Reform of Indigenous heritage protection laws’ webpage,
http://www.environment.gov.au/heritage/laws/Indigenous/lawreform/ (accessed 11 April 2011).
270 Evatt, E. (1996). Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984,
final report to the Minister for Aboriginal and Torres Strait Islander Affairs.
271 Commonwealth Department of the Environment, Water, Heritage and the Arts (2009). Discussion
Paper: Indigenous heritage law reform,
http://www.environment.gov.au/heritage/laws/Indigenous/lawreform/pubs/discussion-paper/index.html
(accessed 11 April 2011).
272 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘ATSIHP Act Review’ webpage,
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Also in the reporting period, a major independent review was held of the key national
environmental legislation, the Environmental Protection and Biodiversity Conservation Act
1999 (Cth) (EPBC Act) (the ‘Hawke Review’).273
The EPBC Act had already been the subject of regular change in the reporting period. 274
Significant amendments were made to the heritage provisions in 2003, through the
Environment and Heritage Legislation Amendment Act (No 1) 2003 (Cth). These changes
saw the replacement of the former Australian Heritage Commission Act 1975, and the
establishment of the Australian Heritage Council, through the Australian Heritage Council
Act 2003 (Cth). The changes established the current heritage listing processes still in effect.
Further amendments to the EPBC Act which took effect on 19 February 2007 (Environment
and Heritage Legislation Amendment Act (No 1) 2006 (Cth)), included changes to require
the Australian Heritage Council to prepare annual priority assessment lists of new
nominations for National Heritage and Commonwealth Heritage, which, if approved by the
Minister, become Finalised Priority Assessment lists.275
The Hawke Review recommended that a new Australian Environment Act be created to
replace the EPBC Act and incorporate the provisions of the ATSIHP Act as well as other
legislation, to create one national environment and heritage act.276 At the time of completing
this report, the recommendations of this report were being reconsidered under a new
Minister, with further rounds of consultations being undertaken.
In its submission to the Hawke Review, the EPBC Indigenous Advisory Committee (IAC)
observed that the EPBC Act has largely failed Indigenous Australian’s aspirations for the
protection and management of our heritage and environments. In particular, it was noted
that the promotion of a ‘cooperative approach’ to environmental management between
government and stakeholders must recognise the special relationship that Indigenous
peoples have with their environments.
http://www.environment.gov.au/heritage/laws/Indigenous/lawreform/submissions.html (accessed 9
September 2011).
273 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Independent review of the Environment Protection and Biodiversity Conservation Act 1999’ webpage,
http://www.environment.gov.au/epbc/review/index.html (accessed 11 April 2011).
274 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘History of the EPBC’ webpage, http://www.environment.gov.au/epbc/about/history.html (accessed11
April 2011).
275 New South Wales Environmental Defenders Office (2010). Commonwealth Heritage Law
Factsheet, http://www.edo.org.au/edonsw/site/factsh/fs03_2.php#_ftn5 (accessed 11 April 2011).
276 Commonwealth Department of the Environment, Water, Heritage and the Arts (2009). The
Australian Environment Act: Report of the Independent review of the Environment Protection and
Biodiversity Conservation Act 1999, http://www.environment.gov.au/epbc/review/publications/finalreport.html (accessed 11 April 2011).
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The IAC suggested a number of improvements to the EPBC Act, and ATSIHP Act, that
would give due regard to Indigenous peoples rights, interest and aspirations, while also
improving overall assessment, protection and management outcomes, including:
 The EPBC Act should take primacy over the standards for environment and heritage
protection in the states and territories, including providing a mechanism for Indigenous
peoples to seek protection of their heritage and environments and setting a standard
for engagement of Indigenous peoples that is consistent across all jurisdictions;
 Indigenous heritage places should be made a matter of National Environment
Significance (NES);
 Consideration of a review which combines analysis of the EPBC Act and the ATSIHP
Act together;
 Revision of the ATSIHP Act needs to be revised to include a minimum set of standards
consistent with those in the revised EPBC Act to deal with Indigenous heritage (places
and objects) at Commonwealth level below the NES level; and
 State and territory bilateral agreements should incorporate protection of all Indigenous
heritage places on their heritage lists to meet the Commonwealth standard.
The IAC also highlighted that the effectiveness of legislative change depends on mindful
recognition of the special relationship that Indigenous peoples have with their environment.
The Government must accept that this special relationship gives rise to a suite of rights and
responsibilities that apply to Indigenous Australians irrespective of the EPBC Act. Any
legislative change must also be backed by political will from all arms of government.
Ultimately, the capacity of the EPBC Act to meet Indigenous rights, interests and aspirations
in the future is a matter of political will for both Parliament and the Executive. Until such time
as both parliamentarians and bureaucrats see the benefits of recognising and supporting
Indigenous rights, interests and aspirations, it is difficult to imagine that this framework will
met the needs of Aboriginal and Torres Strait Islander peoples. The rights and interests of
other more influential stakeholders will continue to attract the priority attention to the detriment
of Indigenous Australians.277
EPBC Indigenous Advisory Committee, Submission to Hawke Review 2009
A review of the Protection of Movable Cultural Heritage Act 1986 (Cth) (PMCH Act) and the
Protection of Movable Cultural Heritage Regulations 1987 (Cth) (PMCH Regulations) was
undertaken in 2009. A report on the outcomes of the review, which includes a series of
recommendations for improvements to the PMCH Act and PMCH Regulations, found:
The question of the treatment of significant Aboriginal and Torres Strait Islander objects
(Indigenous objects) under the PMCH legislation elicited the greatest range of views out of all
the discussion topics canvassed in the review. The classification and assessment of
Indigenous objects of secret sacred significance was a particularly contentious issue with no
277
EPBC Indigenous Advisory Committee, Submission to the Review of the EPBC,
http://www.environment.gov.au/indigenous/publications/epbc-review.html (accessed 9 September
2011).
Australia ■ State of the Environment 2011 Supplementary information
167
State of Indigenous cultural heritage 2011
consensus…As there was no clear way forward the report recommends retaining the status
quo.278
The Native Title Act 1993 (Cth) was another key piece of Indigenous heritage legislation that
underwent significant amendment in the reporting period. The Federal Parliament reviewed
and amended the Native Title Act in 2007 and 2009.279 The 2007 and 2009 changes related
to the operation of the native title system generally, and processes for agreement making.
Although not specifically changes to the heritage provisions of the Native Title Act 1993
(Cth) , as Indigenous peoples’ cultural heritage is a key part of native title, these changes
are also relevant for heritage protection and management.
Further amendments to the Native Title Act 1993 (Cth) are currently being considered.280
Changes to Australian Capital Territory heritage legislation in the
reporting period
The Heritage Act 2004 (ACT) came into effect in March 2005, replacing the Heritage Objects
Act 1991 (ACT). The new Act’s provisions provide for Indigenous heritage alongside natural
and historic heritage.
A review of the Heritage Act 2004 (ACT) was recently completed and is currently being
considered by the Australian Capital Territory Government.281
Changes to New South Wales heritage legislation in the reporting
period
Both the National Parks and Wildlife Act 1974 (NSW) and the Heritage Act 1977 (NSW)
underwent changes in the reporting period.
The National Parks and Wildlife Act 1974 (NSW) is the main law for the protection and
management of Aboriginal heritage places and objects on both public and private lands in
New South Wales. It also provides for the return of national parks, and access to and use of
parks for traditional activities by Aboriginal people.
278
Commonwealth Department of the Prime Minister and Cabinet, Office for the Arts, Review of the
Protection of Movable Cultural Heritage Act 1986 and Protection of Movable Cultural Heritage
Regulations 1987: Report of public consultation,
http://www.arts.gov.au/__data/assets/pdf_file/0003/91983/PMCH_Review_report_final_for_web.pdf
(accessed 11 April 2011).
279 National Native Title Tribunal, ‘The Native Title Act’ webpage, at http://www.nntt.gov.au/About-TheTribunal/Pages/NativeTitleAct.aspx (accessed 11 April 2011).
280 For information about past and current reforms see Australian Government Attorney General,
‘Native Title Reform’ webpage,
http://www.nadrac.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitler
eform#2007 (accessed 11 April 2011).
281
See
ACT
Chief
Minister,
‘Review
of
the
Heritage
Act’
webpage,
http://www.cmd.act.gov.au/heritage/review_of_the_heritage_act_2004 (accessed 11 April 2011).
Australia ■ State of the Environment 2011 Supplementary information
168
State of Indigenous cultural heritage 2011
The Aboriginal heritage provisions were significantly amended by the National Parks and
Wildlife Amendment Act 2010 (NSW), the majority of which commenced on 2 July 2010. The
changes included:
 New offences for damage to Aboriginal heritage;
 New defences;
 Significantly increased fines;
 Introduction of a due diligence standard of care;
 New exemptions for a range of industries and activities; and
 More flexible permits.282
A review is currently underway to establish independent Aboriginal heritage legislation for
New South Wales. The recommendations of several previous reviews to establish Aboriginal
heritage legislation have not been implemented.283 The review is being managed by the New
South Wales Department of Environment, Climate Change and Water and plans to report in
12 to 18 months.
A major review of the general New South Wales heritage legislation, the NSW Heritage Act
1977 (NSW), was reported in 2007. The review led to number of significant administrative
changes to the Act, but did not specifically deal with Aboriginal heritage.284 Further
administrative changes were made in 2010.285
Earlier amendments to the Heritage Act 1977 (NSW) in 1996 made the Heritage Council
responsible for Aboriginal heritage of by adding ‘Aboriginal heritage’ as one of the specialist
skill sets to the Heritage Council membership. An Aboriginal Heritage Advisory Panel to the
New South Wales Heritage Council was also established.
It is noted that the Heritage Council identified ‘Aboriginal heritage’ as one its themes for the
2009-2010 Thematic Listings Program.286 It is also noted that following recent state
elections, further changes to the Heritage Act 1977 (NSW) along with environment and
planning laws have been flagged by the incoming New South Wales Government.
282
New South Wales Department of Environment, Climate Change and Water (2010). National Parks
and Wildlife Act 1974 Fact Sheets,
http://www.environment.nsw.gov.au/legislation/NPWamendmentAct2010.htm (accessed 11 April
2011).
283 See summary of past reviews in New South Wales Aboriginal Land Council (2010). Our Sites Our
Rights,
http://www.alc.org.au/media/61784/110215%20our%20sites%20our%20rights%20final.pdf
(accessed 11 April 2011).
284 New South Wales Office of Environment and Heritage, Report of the NSW Heritage Act 1977,
http://www.heritage.nsw.gov.au/docs/mediareleases/heritagact_review_report.pdf (accessed 11 April
2011).
285 New South Wales Office of Environment and Heritage, ‘Amendments to the Heritage Act 1977
(2010)’ webpage, http://www.heritage.nsw.gov.au/06_subnav_07_0.htm (accessed 11 April 2011).
286 New South Wales Office of Environment and Heritage, ‘State Heritage Register Thematic Listings
Program 2009-2010’ webpage, http://www.heritage.nsw.gov.au/07_subnav_19_02.htm (accessed 11
April 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Changes to Northern Territory heritage legislation in the reporting
period
Indigenous heritage in the Northern Territory is covered by two independent Acts: the
Northern Territory Aboriginal Sacred Sites Act 1989 (NT), which deals with sacred sites and
sacred areas, and the Northern Territory Heritage Conservation Act 1991 (NT), which
manages primarily archaeological heritage places and objects.
The Northern Territory Heritage Conservation Act 1991 (NT) provides protection for some
Indigenous heritage places also protected by the Northern Territory Aboriginal Sacred Sites
Act 1989 (NT) and, in the case of areas on declared Aboriginal lands, by the Aboriginal Land
Rights (Northern Territory) Act 1976 (NT).
Although not amended in the reporting period, the Northern Territory Heritage Conservation
Act 1991 (NT) has been under review since 2002 and may shortly be amended to enable
increased recognition of Indigenous heritage through the general Northern Territory Heritage
Register.
The review was initiated by the Northern Territory Government in recognition that the
legislation had a number of problems and required amendment to reflect the changing
pressures on heritage in the territory.287 As stated in the Briefing Notes for the Review of the
Heritage Conservation Act 1991:
The Northern Territory Heritage Conservation Act was drafted nearly fourteen years ago. In
that time, the Territory has changed dramatically. Tourism has grown to become a major
industry. Tourists now spend a total of 1026 million dollars annually in the Northern Territory.
Environmental and cultural heritage tourism attracts the majority of visitors to the Territory.
Statistics from the Northern Territory Tourist Commission show that 46% of all visitors are
motivated to come and see natural heritage places and 17% to visit historic sites. Once in the
Northern Territory, 54% of tourists visit Aboriginal art and cultural places, 50% visit natural
heritage places and 45% tour historic sites. The conservation of natural and cultural heritage
places is an important part of our developing tourist industry. The Territory must maintain
effective heritage legislation to help conserve these places.288
The consultations undertaken as part of the review highlighted that ensuring the Act
effectively covered Indigenous heritage was a priority. In February 2010 a draft Northern
Territory heritage bill was released for comment. The draft bill provides for an expanded
Northern Territory Department of Natural Resources, Environment, The Arts and Sport, ‘Review of
Heritage Conservation Act’ webpage,
http://www.nt.gov.au/nreta/heritage/legislation_review/index.html (accessed 9 April 2011) and
Northern Territory Department of Natural Resources, Environment, The Arts and Sport (2010).
Summary Paper: Proposed New Heritage Legislation for the Northern Territory 2010,
http://www.nt.gov.au/nreta/heritage/legislation_review/pdf/summarypaper_heritageact2009.pdf
(accessed 9 April 2011).
288 Northern Territory Department of Natural Resources, Environment, The Arts and Sport, Briefing
Notes for the Review of the Heritage Conservation Act 1991,
http://www.nt.gov.au/nreta/heritage/manage/pdf/briefingnotes.pdf (accessed 9 April 2011).
287
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Heritage Council, including at least two persons of Aboriginal descent, increased penalties
for destroying or damaging listed heritage places and a range of other measures.289 The
proposed criteria for heritage listing includes the social, cultural and spiritual significance of
an object or place for Aboriginal peoples. The proposed bill would continue to co-exist with
the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).
At the time of completing this report, no timeline had been announced for the introduction of
this bill to the Northern Territory Parliament for consideration.
Changes to Queensland heritage legislation in the reporting period
In September 2008 the Queensland Government announced a review of its two Indigenous
cultural heritage acts – the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait
Islander Cultural Heritage Act 2003 (Qld).290
The review found that the Acts are working well to protect Indigenous cultural heritage in
Queensland. However, clearer standards and process are required to reduce ambiguity on
the interpretation of the Acts and to enhance cultural heritage agreement making.
Furthermore, options for reducing regulatory burdens on government and non-government
stakeholders were identified. The review also found that awareness of the Acts and the
capacity of proponents and Traditional Owner stakeholder groups to negotiate effective
agreements about the management of cultural heritage, is often limited.291
In October 2010, an Indigenous Cultural Heritage Acts Amendment Bill 2011 exposure draft
was released for comment. The objective of the Indigenous Cultural Heritage Acts
Amendment Bill 2011 exposure draft is to ‘improve the efficiency and efficacy of the
legislation in achieving the objectives of protecting Indigenous cultural heritage in
Queensland’.292
289
Northern Territory Department of Natural Resources, Environment, The Arts and Sport, Northern
Territory Heritage Act 2009 – Consultation Draft: A Bill for an Act about the Territory's cultural and
natural heritage, http://www.nt.gov.au/nreta/heritage/legislation_review/pdf/draft_bill.pdf (accessed 11
April 2011) and Summary Paper: Proposed New Heritage Legislation for the Northern Territory 2010,
above note 288.
290 Queensland Department of Environment and Natural Resources, ‘Indigenous Cultural Heritage
Acts Review’ webpage, http://www.derm.qld.gov.au/cultural_heritage/legislation/index.html (accessed
11 April 2011).
291 Queensland Department of Environment and Natural Resources (2009). Indigenous Cultural
Heritage Acts Review—Key issues and draft recommendations paper,
http://www.derm.qld.gov.au/cultural_heritage/pdf/ichar_key_issues_draft_rec.pdf (accessed 11 April
2011).
292 Queensland Department of Environment and Natural Resources, Indigenous Cultural Heritage
Acts Amendment Bill 2011 Explanatory Notes,
http://www.derm.qld.gov.au/cultural_heritage/legislation/pdfs/ichar_exp_notes.pdf (accessed 11 April
2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
Indigenous groups have raised some concerns about the Bill, including that it aligns the
process for identifying Aboriginal groups with authority to speak for cultural heritage too
closely with native title, which can be unnecessarily complex and difficult test.293
Changes to South Australian heritage legislation in the reporting
period
The primary legislation for the protection of Indigenous heritage in South Australia is the
Aboriginal Heritage Act 1988 (SA). This Act has been under review since 2008.
In 1965, South Australia became the first jurisdiction in Australia to enact legislation
protecting Aboriginal heritage, with new Acts established in 1979 and 1988.294
As stated on the website of the Government of South Australia Department of Premier and
Cabinet, Aboriginal Affairs and Reconciliation Department, the Aboriginal Heritage Act 1988
(SA) is currently under review as:
A number of changes have been made to South Australian policy and legislation that have
affected Aboriginal heritage legislation since the Aboriginal Heritage Act 1988, including the
enactment of the Native Title Act 1993 and the introduction of legislation that takes an
integrated approach to land management and use. A need for reform has been expressed by
Aboriginal people and industry groups. The final form of new heritage legislation will be
decided following extensive consultation, robust debate and careful analysis. 295
Key findings from the community consultation process found concern over the current
operation of the legislation, and a strong view from Aboriginal community members about
the need for greater Aboriginal roles and control of Aboriginal heritage.296
Two of the principles underpinning the review are recognising Aboriginal custodianship of
cultural heritage and enabling and recognising Aboriginal responsibility for negotiating
293
Queensland South Native Title Services (2011). Submission in relation to the Exposure Draft of the
Indigenous Cultural Heritage Acts Amendment Bill 2011,
http://www.qsnts.com.au/index.cfm?contentID=29 (accessed 28 April 2011).
294 National Native Title Tribunal (2010). Commonwealth, State and Territory Heritage Regimes:
summary of provisions for Aboriginal consultation, report for the New South Wales Aboriginal Land
Council,
http://www.alc.org.au/media/61790/101221%20nntt%20heritage%20regimes%20aboriginal%20consul
tation%20final.pdf (accessed 5 March 2011).
295 South Australia Department of Premier and Cabinet, ‘Review of the Aboriginal Heritage Act 1988’
webpage, http://www.aboriginalaffairs.sa.gov.au/aha/introduction.html (accessed 6 April 2011) and
South Australia Department of Premier and Cabinet, Aboriginal Heritage Act 1988 Discussion Paper,
http://www.aboriginalaffairs.sa.gov.au/resources/ALTA%20REVIEW%20CONSULTATION%20PAPE
R.pdf (accessed 6 April 2011).
296 South Australia Department of Premier and Cabinet (2009). ‘It’s Not Just About Sacred Sites’: A
qualitative analysis of the community consultation process of the 2009 Review of the Aboriginal
Heritage Act 1988,
http://www.aboriginalaffairs.sa.gov.au/resources/AHA%20Review%20Consultation%20Report.pdf
(accessed February 2011).
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
agreements about heritage.297 The Aboriginal Lands Trust Act 1966 (SA) is also under
review.298
Changes to Tasmanian heritage legislation in the reporting period
The Aboriginal Relics Act 1975 (Tas) has been under review since 2005. The historic and
archaeological focus of the Act, which protects Aboriginal sites and objects pre-dating 1876,
has been strongly criticised.299
The Act’s limitations have been recognised by the Tasmanian Government and following
extensive consultations a consultation draft of an Aboriginal heritage bill was due to be
released in 2009.300
At the time of completing this report no update was available as to why the release of the bill
had been delayed.
A review of the Tasmanian Historic Cultural Heritage Act 1995 (Tas) was completed in
2005.301 This review did not consider Indigenous heritage.
Changes to Victorian heritage legislation in the reporting period
Victoria’s Aboriginal heritage management system was overhauled in the reporting period,
with the Aboriginal Heritage Act 2006 (Vic) commencing operation on the 28 May 2007.
The Aboriginal Heritage Act 2006 (Vic) repealed the former Archaeological and Aboriginal
Relics Preservation Act 1972 (Vic). Prior to the new 2006 legislation, Victorian Aboriginal
heritage was also protected by Part 11A of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 (Cth). This specific Victorian Part had been added to the
Commonwealth legislation at the request of the Victorian Government in the 1980s, which
had been unable to progress reforms to Indigenous heritage through legislation at the state
level owing to lack of support from the Opposition.302
297
South Australia Department of Premier and Cabinet (2008). Aboriginal Heritage Act 1988 - Scoping
Paper, http://www.aboriginalaffairs.sa.gov.au/aha/scoping_paper.html (accessed 6 April 2011).
298 South Australia Department of Premier and Cabinet, ‘Review of the Aboriginal Lands Trust Act
1966’ webpage, http://www.aboriginalaffairs.sa.gov.au/ (accessed 31 March 2011).
299 Tasmanian Department of Primary Industries, Parks, Water and Environment, ‘Tasmanian
Aboriginal Heritage Legislation project’ webpage, http://www.tahl.tas.gov.au/ (accessed 12 April
2011).
300 Tasmanian Department of Primary Industries, Parks, Water and Environment, ‘Tasmanian
Aboriginal Heritage Legislation Newsletter’,
http://www.tahl.tas.gov.au/media/resources/TAHL%20Newsletter%20Four.pdf (accessed 12 April
2011).
301 Mackay Logan, G. (2005). Tasmanian Heritage Act Review Report,
http://www.heritage.tas.gov.au/media/pdf/Tasmanian%20Heritage%20Act%20Review%20(August%2
02005).pdf (accessed 12 April 2011).
302 Above note 295.
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
The new Aboriginal Heritage Act 2006 (Vic) provides for:
 the establishment of a Victorian Aboriginal Heritage Council made up of Aboriginal
people,
 the introduction and management of a system of Registered Aboriginal Parties RAPs)
as decision-making bodies for particular areas and regions,
 the establishment of Cultural Heritage Management Plans and Cultural Heritage
Permit processes to manage activities that may harm Aboriginal cultural heritage,
 a system of cultural heritage agreements to support the development of partnerships
around the protection and management of Aboriginal cultural heritage, and
 stronger enforcement provisions.303
Following the most recent Victorian State Election in 2010, the incoming Victorian
Government has initiated an inquiry into the Act and particularly into the establishment and
effectiveness of RAPs.304 The incoming government has repeatedly confirmed their
commitment to RAPs, and the inquiry has been welcomed by the Victorian Aboriginal
Heritage Committee.
The Victorian Aboriginal Heritage Council has been given the power to appoint RAPs. In
doing so they have adopted an official policy of ‘right people for Country’, which means that
only traditional groups will be considered. Just over 50 % of the state is presently covered by
RAPs.
It is also noted that some administrative amendments were also made to the Heritage Act
1995 (Vic) in the reporting period.305
Changes to Western Australia heritage legislation in the reporting
period
A review was held into the Aboriginal Heritage Act 1972 (WA) in the mid-1990s. However its
provisions have stayed largely in place since that time.306 Reform of the Aboriginal Heritage
Act 1972 (WA) is currently underway and new legislation will be introduced into West
Australian Parliament in September 2011. The reforms are to make the Act a more relevant
Victoria Department of Planning and Community Development, ‘Aboriginal Heritage Act 2006’
webpage, http://www.dpcd.vic.gov.au/Indigenous/aboriginal-cultural-heritage/aboriginal-heritage-act2006 (accessed 11 April 2011).
304 Victorian Premier (16 February 2011) Media Release ‘Victorians to have their say on Registered
Aboriginal Parties’, http://premier.vic.gov.au/2011/02/victorians-to-have-their-say-on-registeredaboriginal-parties/ (accessed 11 April 2011).
305 Victorian Department of Planning and Community Development (2008). Information Note:
Amendments to the Heritage Act 1995,
http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0017/47204/heritage_act_amend_Dec08.pdf
(accessed 12 April 2011).
306 Above note 295.
303
Australia ■ State of the Environment 2011 Supplementary information
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State of Indigenous cultural heritage 2011
and contemporary piece of legislation able to meet current and future needs to protect
Aboriginal heritage.307
Recent amendments were made to the general heritage act, the Heritage of Western
Australia Act 1990 (WA), along with the Planning and Development Act 2005 (WA) in 2010.
A small number of places with Indigenous cultural values are included in the West Australian
State Heritage Register and are protected by the Heritage of Western Australia Act 1990
(WA).
Under changes made to the Heritage of Western Australia Act 1990 (WA), from 3 March
2011, the maximum penalty for damaging or despoiling a place entered on the State
Register of Heritage Places increased significantly, from $5,000 to $1,000,000, with the daily
penalty increasing from $500 to $50,000, along with a range of other penalties.308
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Victorian Premier (16 February 2011) Media Release ‘Victorians to have their say on
Registered Aboriginal Parties’, http://premier.vic.gov.au/2011/02/victorians-to-have-theirsay-on-registered-aboriginal-parties/ (accessed 11 April 2011).
Wylynko, B. and Hoskins, F. (2011). ‘WA heritage protection laws given more bite’ in
Environment and Planning Insights,
http://www.claytonutz.com/publications/newsletters/environment_and_planning_insights/2
0110405/wa_heritage_protection_laws_given_more_bite.page (accessed 11 April 2011).
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Correspondence
Correspondence with West Australian Department of Indigenous Affairs dated 29 June
2011.
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Appendix 5: List of stakeholders interviewed
Paul Paton (CEO, Victorian Aboriginal Corporation for Languages) telephone interview 6
April 2011
Christina Eira (Community Linguist, Victorian Aboriginal Corporation for Languages)
telephone interview 6 April 2011
Melissa George (Indigenous Advisory Committee, Environment Protection and Biodiversity
Conservation Act) telephone interview 8 April 2011
Kynton Wanganeen (South Australian Commissioner for Aboriginal Engagement) telephone
interview 11 April 2011
Denise Lovett (Deputy Chair, Victorian Aboriginal Heritage Council)
Barbara McGillivray (Chairperson, Federation of Aboriginal and Torres Strait Islander
Languages and Culture (Corporation)) telephone interview 13 April 2011
Doug Marmion (Acting Manager, AIATSIS Language Unit telephone interview 18 April 2011
Kazuko Obata (language Access Research fellow, AIATSIS Language Unit) telephone
interview 18 April 2011
Ari Gorring (Kimberley Land Council) telephone interview 29 April 2011
Wes Morris (Coordinator, Kimberley Aboriginal Law and Culture Centre) telephone
interviews March – May 2011
Gordon Machbirrbbirr (Traditional Custodian, Magamarra) telephone interviews March –
May 2011
Brendan Bainbridge (Coordinator, Djelk Rangers) telephone interviews March – May 2011
Phil Rist (CEO, Girringun Aboriginal Corporation) telephone interviews March – May 2011
Paul Dixon (Living Kaurna Cultural Centre) telephone interviews March – May 2011
John Dickson (Coordinator, Working on Country Rangers, Tasmanian Aboriginal Land and
Sea Council) telephone interviews March – May 2011
Louis Davis (Yuin Elder) telephone interviews March – May 2011
Damien Bell (CEO, Gunditj Mirring) telephone interview 3 June 2011
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Appendix 6: Additional data and correction from Commonwealth,
state and territory government agencies
A number of Commonwealth, state and territory government agencies were sent written
requests for additional data and corrections regarding content of this report. All agencies
were asked for data by email in March and again in May 2011. The May 2011 email included
extracts of the draft sections of the report, compiled from state and territory State of the
Environment Reports and a range of other sources.
In response to these requests, corrections and new data were provided by state and territory
agencies, in relation to:
 the legislative framework for their state;
 moveable and immoveable heritage data, especially data on registers; and
 in some cases land data.
The agencies that provided responses were:
 Commonwealth Department of Sustainability, Environment, Water, Populations and
Communities dated 24 Aug 2011 (ATSIHPA data);
 Heritage Unit, Office of the Commissioner for Sustainability and the Environment,
Australian Capital Territory ACT dated 15 June 2011.
 New South Wales Department of Environment Climate Change and Water dated 30
May 2011
 Northern Territory Aboriginal Areas Protection Authority dated 15 June 2011.
 Northern Territory Department of Natural Resources, Environment, The Arts and Sport
dated 7 June 2011.
 Aboriginal Heritage Tasmania, Department of Primary Industry, Parks, Water and
Environment dated 16 June 2011.
 Tasmanian Department of Primary Industry, Parks, Water and Environment dated 30
May 2011.
 Victorian Department of Planning and Community Development dated 18 July 2011.
 Aboriginal Affairs Victoria, Victorian Department of Planning and Community
Development on 28 July 2011.
 South Australia Department of the Premier and Cabinet dated 31 March 2011.
 Western Australian Department of Indigenous Affairs on 29 June 2011.
 Western Australia Environmental Protection Authority dated 24 March 2011.
 Tourism Research Australia dated 31 May 2011.
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The agencies that did not respond to requests were:
 Heritage Branch, New South Wales Department of Planning.
 Queensland department of Environment and Resource Management.
 Heritage Unit, South Australian Department of Premier and Cabinet
 Tasmanian Department of Premier and Cabinet
 Tasmanian Office of Aboriginal Affairs, Department of Premier and Cabinet.
 National Native Title Tribunal.
 Reconciliation Australia.
 National Indigenous Knowledge Centre Project.
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Attachment A: Case Studies
E. Schnierer
Introduction
A total of eight case studies of the condition and integrity of Indigenous cultural heritage
have been prepared for this report, comprising six site specific case studies and two regional
case studies:
Site case studies
 Tjilbruke Dreaming Trail, (South Australia);
 Preminghana Indigenous Protected Area, (Tasmania);
 Magamarra, (Northern Territory);
 Biamanga, (New South Wales);
 Eel Traps, Lake Condah (Victoria);
 Lake Eyre (South Australia);
Regional case studies
 Wet Tropics World Heritage Area (Queensland); and
 Kimberley, (Western Australia).
The case studies highlight the diversity of Indigenous values that may be associated with
physical heritage places. Each case study includes a detailed explanation of why the site or
region is significant to Traditional Owners, which provides context for understanding why
certain activities threaten cultural integrity and why certain responses to these pressures are
ineffective or inadequate.
A shortlist of case studies was prepared and submitted to the Department of Sustainability,
Environment, Water, Populations and Communities. Case studies were selected so that they
represented:
 all states and territories;
 urban, regional and remote areas;
 different types of heritage significance;
 different pressures affecting condition and integrity; and
 different responses to these pressures, including the effectiveness of responses.
The case studies were prepared using desktop research and a telephone interview with one
or two Traditional Owners.309 Site visits were outside the scope of this report. In accordance
309
Except in the case of the Lake Eyre case study where the author was unable to secure an
interview with a Traditional Owner.
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with best practice protocols for research in Indigenous communities, Traditional Owners
were given the opportunity to review drafts of the case study, amend quotes and decide how
they would like to be identified or if they want to be identified at all. The authors elected to
not include any secret cultural information in the case studies.
Interviews were also conducted with key Indigenous stakeholders to gather a broad level
picture of the most significant pressures from an Indigenous perspective.
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Tjilbruke Dreaming Trails, South Australia
Background
The Tjilbruke Dreaming Trails are located in the traditional lands of the Kaurna (pronounced
‘Ghana’) Nation in South Australia. Tjilbruke Dreaming relates to the journey taken by
‘Tjilbruke’, a Kaurna ancestor, which shaped the land into the formation that people know
today.
The Trails are spread over large tracts of public and private lands, none of which are
Aboriginal owned. Management is undertaken by the four local councils that span the length
of the Trails in partnership with the Kaurna Nation in some cases.
The Tjilbruke Dreaming Trails are widely regarded by non-Aboriginal South Australians as
an important feature of the region. Some Traditional Owners attribute mainstream support
for the Trails to their proximity to urban areas.310
Figure A1. Map of Tjilbruke Dreaming Trail
Source: Kaurna Tappa Iri Regional Agreement: Heritage, Culture and Business Development, 2005-2008, 6 July
2005, http://www.yankalilla.sa.gov.au/webdata/resources/files/Kaurna_Tappa_Iri_Regional_Agreement_.pdf
(accessed 29 August 2011), p 8.
Significance
Tjilbruke was the Kaurna ancestral creator being and Tjilbruke Dreaming is the predominant
dreaming of southern Kaurna country.311 Among other things, the Dreaming explains the
creation of seven freshwater springs along the coast of the Fleurieu Peninsula between
310
While the Kaurna experience widespread recognition of the significance of the Trails, they continue
struggle for recognition of other important sites on their Country, such as those along the Seaford Rail
line.
City of Holdfast Bay, ‘Tjilbruke Heritage and the Kaurna People’ webpage,
http://www.holdfast.sa.gov.au/site/page.cfm?u=1248 (accessed 9 September 2011).
311
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Crystal Brook in the north, through the Adelaide plains to Parewangk (Cape Jervis) in the
south (see Figure 1).
The Dreaming is a complex and multilayered story that speaks of creation, the law and
human relationships for Kaurna people. The Dreaming is explained in the Kaurna Tappa Iri
Regional Agreement as follows:
Tjilbruke’s much loved nangari (nephew) Kulultuwi, his sister's son, killed a kari (emu) which
was rightfully Tjilbruke's but he forgave him for this mistake. However, Kulultuwi was
subsequently killed by his two part brothers, Jurawi and Tetjawi supposedly for breaking the
law.
Tjilbruke, being a man of the law, had to decide if Kulultuwi had been lawfully killed. He
determined Kulultuwi had been murdered. Tjilbruke avenged the crime by spearing and
burning the two nephews, killing them. This happened in the vicinity of what is now called
Warriparinga.
Tjilbruke then carried Kulultuwi's partly smoked dried body to Tulukudank (a fresh water
spring at Kingston Park) to complete the smoking and then to Patparno (Rapid Bay) for burial
in a perki (cave). Along his journey he stopped to rest and overwhelmed by sadness, he wept
and his luki (tears) formed the freshwater springs along the coast at Ka'reildun (Hallett Cove),
Tainba'rang (Port Noarlunga), Potartang (Red Ochre Cove), Ruwarung (Port Willunga),
Witawali (Sellicks Beach), and Kongaratinga (near Wirrina Cove).
Saddened by these events Tjilbruke decided he no longer wished to live as a man. His spirit
became a bird, the Tjilbruke (Glossy Ibis), and his body became a martowalan (memorial) in
the form of the baruke (iron pyrites) outcrop at Barrukungga, the place of hidden fire
(Brukunga - north of Nairne in the Adelaide Hills). Tjilbruke was a master at fire-making.312
Kaurna Tappa Iri Regional Agreement
The sites along the Tjilbruke Trails are still used by local Kaurna people today as part of their
living culture, for which they require access to country. Among other practices, sites along
the Trails are used for secret men’s and women’s business.
Summary of condition and integrity
 The Trails are reportedly in fair condition overall, although there are some sections
which are in better condition than others.
 There is widespread recognition by non-Aboriginal people of the significance of the
Trails to Kaurna culture.
 Ongoing maintenance is being performed on some sections of the Trails, which
generally are public land in local government areas with cooperative local councils.
312
Kaurna Tappa Iri, Kaurna Tappa Iri Regional Agreement: Heritage, Culture and Business
Development 2005-2008,
http://www.yankalilla.sa.gov.au/webdata/resources/files/Kaurna_Tappa_Iri_Regional_Agreement_.pdf
(accessed 6 June 2011).
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 Funding for site maintenance is an ongoing issue.
 The integrity of cultural practices associated with the Trails is impacted by the
proximity of residential housing to some places used for secret men’s and women’s
business.
 There are also unintended impacts from national parks laws on the ability of Kaurna
people to continue cultural practices on sections of the Trails located on-park.
Pressures
Fragmented ownership and responsibility for management
The Kaurna people have a customary responsibility to manage and maintain the Trails and
to preserve cultural practices linked with the Trails. Their ability to fulfil this responsibility is
severely limited by their lack of ownership or control of the lands on which the Trails are
located. .
The Tjilbruke Dreaming Trails extend through four Local Government Areas and some
national parks. The Traditional Owners are therefore heavily reliant on landowners to
manage the Trails and the sacred sites along them on their behalf, especially local councils
and the National Parks Service.
Some Traditional Owners report having good relationships with some councils, but lacking
engagement with others. Management of the Trails is not well coordinated by all four local
councils, especially in relation to applications for Commonwealth heritage funding. The City
of Marion is reportedly very supportive of the Kaurna People, but the Kaurna have had no
success with their individual applications.
Management coordination is also complicated by the fact that the Trails extend into
Ngarrindjeri country in the south. According to some Traditional Owners, the two nations are
working relatively well together to achieve the best overall outcome for management of the
Trails.
Resources for site maintenance
In some urban areas, some sacred sites have been incorporated into council reserves,
which means the local council is responsible for ongoing maintenance. The City of Holdfast
Bay are an example of best practice. According to Traditional Owners, this council has put a
lot of effort into maintaining and caring for sacred sites within its jurisdiction. The Council has
also built a good relationship with the Kaurna community:
Holdfast Bay is great because we have a really close relationship with some of the staff there.
They’ve had consistent staff for a long time, like 15-20 years. We’ve know them for years,
which means Tjilbruke issues get attention. We’ve noticed the council’s environmental officers
making a big difference now. They make it much easier to manage our sites by providing help
and resources.
Traditional Owner
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The Kingston Park Trail located under the foreshore was cited as an example of cooperation
between the City of Holdfast Bay and Kaurna people. In developing a master plan for this
section of the Trail, the Kaurna were able to engage the local council and develop a shared
vision for management of the site. The local council has also supported the Kaurna with
fencing, revegetation and weeding at the site.
One Traditional Owner felt that it is generally easy to get local councils in metropolitan areas
to undertake maintenance of sites located in close proximity to people’s homes because, as
he put it, ‘the council have to act if the site looks bad’.
This Traditional Owner also thought the Trails have actually improved property values in
some neighbourhoods. For example, in one location the Kaurna have established an
interpretation site with pictures and plants. A resident from an adjacent property used
pictures of the interpretation site as a ‘selling point’ in an online advertisement for the
property, a fact some Kaurna are proud of.
Urban development
While the proximity of the Trails to urban areas means they receive much needed
maintenance, this proximity is also the greatest threat to their condition and integrity. The
suburbs that have developed around and through the Trails are now densely populated, with
many homes built alongside sacred sites – compromising the secret nature of some cultural
practices; specifically gender restrictions cannot always be upheld.
We have campsites where people are walking past and watching us. In some areas we have
a men’s camp with campfires and dance. We are finding it harder and harder to hold these
camps mainly because there is housing encroaching on the sites, and people watching
ceremony from their kitchen windows. It feels like we’re putting on a show.
Traditional Owner
Sacred sites in urban areas cannot simply be moved to new locations to protect the integrity
of cultural practice, as they are intrinsically linked to the natural environment in which they
are located. Neither is it realistic to expect that people will move their homes. Instead the
Kaurna would like to see local governments introduce ‘buffer zones’ around important sites
that would provide some measure of privacy for cultural practices. The buffer could be as
simple as a tree, hedge shrub or other native species.
National parks legislation restricting cultural practice
The Tjilbruke Dreaming Trails also extend through national parks in some places, which also
impacts on the integrity of sites and cultural practice. One of the most pressing concerns are
the laws which ban fires in national parks. While Aboriginal people can apply for a permit
from local rangers, the Kaurna carry out frequent camps and ceremony on Country and it is
a burden to apply for a permit each time. Some Kaurna question the application of this
restriction to them, pointing out they are very selective about wood gathering and the
environmental impact of their actions within the national park.
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Responses
Legal protection
There are seven registered sacred sites on the Tjilbruke Dreaming Trails.313 However, the
significance of the Trails is more than the sum of these seven registered sites. The Trails
can only be understood in their entirety and Kaurna believe that legal protection should
reflect this understanding. They would like to see the Trails registered as a ‘cultural
landscape’. Recognition as a cultural landscape would allow the Trails to be managed in a
unified manner and would make it easier for Kaurna to access funding.
Education and cultural tourism
The Traditional Owners are using education and cultural tourism as strategies to protect the
Trails. They believe that greater protection is achieved through increased public awareness,
as well as increased understanding and respect for their significance. The Living Kaurna
Cultural Centre runs guided tours of the Trails for school groups and offers cultural tours of
sites along the Trails to people interested in Kaurna culture.
313
Sites registered on the South Australian Aboriginal Cultural Heritage Register.
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Preminghana Indigenous Protected Area, Tasmania
Background
Preminghana Indigenous Protected Area (IPA) covers an area of 524 hectares in north-west
Tasmania bordering the Southern Ocean (see Figure 2). It measures just five kilometres
long, by one kilometre wide. Its most prominent feature is ‘Preminghana’ (formerly Mount
Cameron West), a basalt plug that rises 168 metres above the coastline. Preminghana IPA
is owned and managed by the Tasmanian Aboriginal Land and Sea Council.314
Preminghana was Australia’s second IPA, declared in 1999.315 The area has significant
environmental and cultural features and is listed on the Register of the National Estate. The
land is an important cultural and recreational asset to Tasmania’s Aboriginal people. Its
wetlands, coastal grasslands, heath lands and woodlands also attract tourists and surfers.316
Formerly privately owned by the Van Diemen’s Land Company, the land was compulsorily
acquired by the Tasmanian Government in the 1970s to protect its Aboriginal rock engraving
sites.317 It was made a State Reserve and a protected Aboriginal site under Tasmanian
legislation.318 Freehold title to a small parcel of land at Preminghana was subsequently
returned to the Tasmanian Aboriginal community, under the Aboriginal Lands Act 1995
(Tas).319
Figure A2. Location of the Preminghana Indigenous Protected Area
Source: Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Preminghana Indigenous Protected Area’ webpage,
http://www.environment.gov.au/indigenous/ipa/declared/preminghana.html (accessed 29 August 2011).
Tasmanian Aboriginal Land and Sea Centre, ‘Preminghana’ webpage,
http://www.talsc.net.au/preminghana.htm (accessed 9 September 2011).
315 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Preminghana Indigenous Protected Area’ webpage,
http://www.environment.gov.au/indigenous/ipa/declared/preminghana.html (accessed 29 August
2011).
316 Above note 315.
317 Above note 315.
318 Above note 315.
319 Above note 315.
314
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Summary of condition and integrity
 The IPA Rangers are engaged in a constant struggle against a gorse infestation that
has undermined the stability of the sand dunes and impacted on the habitats of several
rare Indigenous species of flora and fauna, as well as cultural objects and sites within
the dunes.
 The rock engravings beneath the dune system are in fair condition because they are
unexposed and protected from the elements.
 Intentional destruction caused by off-road vehicles and motorcycles continues. The
community do not have the resources to employ an on-site caretaker to monitor visitor
activity with the IPA.
 The Aboriginal community hold an annual cultural festival in the IPA. It is a celebration
of the achievements of their ancestors, whose story is written in the rock engravings
and other sites and objects within the IPA. These celebrations are part of the ongoing
revival of cultural practice associated with the land, including land management.
Significance
Preminghana is of natural and cultural significance to Tasmanian Aboriginal people.
Preminghana is listed under Tasmanian Aboriginal heritage legislation as the ‘Mount
Cameron West Engraving site’ for its collection of rock engravings which date back at least
1500 years.320 It is also listed on the Register of the National Estate as part of the ‘Marrawah
to Woolnorth Point Coastal Area’ on account of the rare Murrawah Skipper Butterfly.
Preminghana IPA is managed under the World Conservation Union category, Category VI –
Protected area managed mainly for the sustainable use of natural ecosystems. The sand
dunes of Preminghana are home to the Murrawah Skipper Butterfly, Oreisplanus munionga
larana, and Preminghana Billybutton daisy, Craspedia Preminghana, two species found
nowhere else in the world.321
Rock engravings
The Aboriginal rock engravings lie underneath a coastal dune system. The exact number of
engravings within the dune system is not known as the dunes move, uncovering and
recovering engraving sites over time. When new engravings emerge the Traditional Owners
assess and compare it against the official records to see if it has previously been exposed. If
not, the new sites are catalogued.
Traditional Owners view the engravings as part of a wider landscape which is scattered with
hut depressions, middens, scatter sites and tracks that demonstrate the various ways the
people of Preminghana worked with the land to survive. They view this landscape as
320
Commonwealth Department of Agriculture, Fisheries and Forestry (2008). Making a Difference: A
celebration of landcare, section 6, http://www.daff.gov.au/naturalresources/landcare/publications/making_a_difference_a_celebration_of_landcare/section_6__indigenous_landcare (accessed 9 September 2011).
321 Above note 321.
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significant because it demonstrates how their ancestors survived in the harsh environmental
conditions on the north-western Tasmanian coastline – an area subject to wild winds and
seas and offering little natural shelter.
Knowledge to interpret the meaning of the engravings is no longer in living memory, as the
Traditional Owners were forcibly removed from the area in the 1800s.322 Today the
Traditional Owners believe that everyone is entitled to their own interpretation. One
Traditional Owner explained that he values the engravings for what they represent – the
story of how his ancestors lived, adapted and survived for thousands of years.
Cultural practice
Access to land, waters and the biodiversity of Preminghana are vital to Aboriginal cultural
practice. It is through ongoing interaction with the environment that knowledge and culture
are passed down through generations. The return of Preminghana to the Aboriginal
community has enabled them to reclaim significant cultural practices, most importantly those
relating to traditional land management.323
Erosion control, weed eradication and feral animal removal are the primary IPA land and
heritage management activities.324 The Working on Country Rangers use traditional burning
and weed control to preserve the landscape and Aboriginal rehabilitation techniques to
protect the engravings.325
In addition to traditional land management, the Management Plan for the IPA also
recognises other cultural practices, including:
 harvesting of traditional plant resources for craft and bush tucker;
 hunting of terrestrial mammals and birds; and
 use of marine resources.326
Each year the Tasmanian Land and Sea Centre holds a festival at Preminghana over the
January 26 long weekend to celebrate, reconnect and cultivate the Aboriginal communities
that care for the area. According to Traditional Owners, the ‘Preminghana Festival’ builds
awareness and pride among Aboriginal people in the achievements of their ancestors, who
lived in this place for thousands of years and survived the harsh environmental conditions.
322
Information provided by a Preminghana Working on Country Ranger interviewed for this case
study.
323 Gilligan, B. (2006). The Indigenous Protected Areas program – 2006 Evaluation,
http://www.environment.gov.au/indigenous/publications/ipa-evaluation.html (accessed 9 September
2011), p 37.
324 Commonwealth Department of the Environment and Water Resources (2007). Growing up Strong:
The first 10 years of Indigenous Protected Areas in Australia,
http://www.environment.gov.au/indigenous/publications/growingupstrong.html (accessed 9 September
2011), p 6.
325 Above note 325, p 6.
326 Agreements, Treaties and Negotiated Settlements project, ‘Preminghana Indigenous Protected
Area’ webpage, http://www.atns.net.au/agreement.asp?EntityID=872 (accessed 9 September 2011).
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Community members take part in traditional activities such as spear making, basket
weaving, berry collecting, fishing and diving. It is also a time for people to catch up and
share knowledge.
The Preminghana Festival is a way for the local people to demonstrate that we are still here;
we still use our practices and land. It’s an opportunity to get together and have a yarn and
enjoy our culture at the same time.
Working on Country Ranger, Preminghana IPA
The event is advertised through Aboriginal organisations and posters in the local community.
It is not a strictly structured event, but flows along according to the community members who
take part.
Pressures
Feral animals and introduced weed species
The Preminghana sand dunes are a delicate ecosystem. Feral animals and introduced
weeds have severely impacted the sand dune habitats of several Indigenous species of flora
and fauna, including some traditional food sources and the Murrawah Skipper Butterfly and
Preminghana Billybutton Daisy.
The most significant threat is ‘gorse’, an introduced variety of hedge plant. A long-term gorse
infestation has undermined the stability of the sand dunes and led to erosion. The erosion
has in turn exposed Aboriginal objects and sites which were once protected from the
elements by the sand dunes themselves. There is also no foot access to the engravings at
present because the dune system is so unstable.
The Aboriginal community has been rehabilitating the sand dunes for more than 15 years.
Land restoration activities in the IPA are now largely undertaken by the Working on Country
Rangers. Gorse removal and native plant regeneration are being used to strengthen the
dune systems.
Human activity and intentional damage
Non-Aboriginal people have historically used the IPA lands for recreational activities. These
interests were recognised when the Preminghana lands were returned to the Aboriginal
community. A condition of the hand-back was that the public continue to have access to the
‘charter’ road connecting the main road to a car park behind the sand dunes, located within
the IPA.
Monitoring and assisting public access to the land were also an objective of declaring
Preminghana an IPA. The IPA Management Plan specifically recognises that non-Aboriginal
people use the area for horse riding, off-road vehicles and motorcycles and fishing.327 The
327
Above note 327.
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beach is also a popular surfing spot. Under the IPA Management Plan, the Tasmanian
Aboriginal Land and Sea Centre is responsible for controlling these activities.
It has been difficult for the Rangers to balance land restoration and management activities
and recreational activities in the IPA. The land has been damaged by past human activities
and requires ongoing restoration and rehabilitation works. To achieve this, vehicular access
to the IPA is restricted to the public access road. The Rangers have constructed a fence to
block vehicular access from the car park to the beach and people are required to go on foot
over the sand dunes to the beach. They have also erected signs at the IPA boundary, which
inform people they must only drive on the public access road because the surrounding lands
are private, belonging to the Aboriginal community.
Not long after the fence blocking vehicular access to the beach was constructed, local
surfers retaliated by setting up a barricade at the entrance to the Ranger’s cottage. The
incident was resolved after the police were called to remove the barricade and the Rangers
reported no ongoing issues with local surfers.
While vehicular access to the IPA is restricted to the public access road, the Rangers do not
have the resources to monitor compliance. The Tasmanian Aboriginal Land and Sea Centre
is longer funded to employ an onsite caretaker, which means the community is largely
powerless to monitor and enforce the restrictions that apply to vehicles on the sand dunes.
There has been a degree of damage to Aboriginal cultural heritage as a result of people
continuing to drive off road and ride dirt bikes in the area. According to one IPA Ranger,
some of this damage is caused intentionally. When destruction or desecration does happen,
there is scope under the Aboriginal Relics Act 1975 (Tas) to pursue perpetrators. According
to the community, however, this Act is rarely enforced.
Return of cultural property
A large section of the rock engravings was removed in the 1950s and displayed in
Launceston’s Queen Victoria Museum.328 Some 10 years later another section was cut from
the surrounding rocks and displayed at the Tasmanian Museum and Art Gallery in Hobart.329
The rock engravings held by the Tasmanian Museum and Art Gallery have been returned to
the community in principle, but the Museum has not handed over physical custody. This will
not occur until all parties come to an agreement as to how the engravings will be stored on
an ongoing basis.
Some members of the Aboriginal community believe the culturally-appropriate course of
action is to return the engravings to Country by burying them within the sand dunes they
were removed from. The Museum is concerned the engravings will perish if handled in this
manner and have stipulated that they be stored in an environmentally-controlled facility.
Other members of the Aboriginal community have expressed a willingness to comply with
Australia for everyone, ‘Aboriginal sites – Tasmania’ webpage,
http://www.australiaforeveryone.com.au/aborsites_tas.htm (Accessed 14 April 2011).
329 Above note 329.
328
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the Museum’s requirements provided they have ongoing access to the facility. They propose
construction of an on-Country storage facility that would be culturally appropriate and
provide access for the community.
Funding to facilitate the return of the engravings is currently being sought. The Aboriginal
community believes the Museum, which collected and displayed the objects, should cover
the costs of returning the engravings to its rightful owners, including the costs of constructing
a on-Country facility which would meet the Museum’s own requirements for storage.
Responses
Declaration as Indigenous protected area
The Aboriginal community undertakes complete management of Preminghana. Addressing
environmental degradation was the main objective in having Preminghana declared an IPA.
Specific IPA objectives include:
 land management
 eradication of introduced weed species including gorse and sea spurge;
 re-vegetation of areas;
 rehabilitation of dune erosion;
 protection and maintenance of the biodiversity of the area;
 protection of Aboriginal cultural heritage and cultural values; and
 monitoring and assisting public access to the land.330
The Working on Country Rangers use monitoring and surveying to conserve cultural sites. 331
Gorse is regularly removed by burning, hand removal and poisoning. Fencing and vehicle
restrictions help to protect the land and allow rehabilitation to occur, as well as assisting with
feral animal control. Other land management activities carried out at Preminghana include
seed collection, removal of rubbish and marine debris, and maintenance of visitor
facilities.332
On site caretaker and wardens
At one time, the Aboriginal community employed an on-site caretaker to manage the IPA.
The caretaker was able to monitor visitor activity in the park and take immediate steps to
protect cultural heritage. This position is no longer funded and the community feels
powerless to enforce the protective measures it has put in place inside the IPA. The
Rangers indicated that they rely on their neighbours to monitor activity in the IPA.
330
Above note 327.
Above note 325, p 6.
332 Above note 325, p 6.
331
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Cultural heritage mapping
The Rangers have undertaken a limited amount of cultural heritage mapping through basic
visual site surveys. The maps are not available for public inspection and are securely stored
at the Tasmanian Aboriginal Land and Sea Centre office. The Rangers are not adequately
funded to carry out comprehensive cultural heritage mapping, although this is something
they would like to be able to undertake.
Signage
There is just one sign at Preminghana. It reminds visitors they are on private property
belonging to the Aboriginal community and to stay on the public road. The Tasmanian
Aboriginal Land and Sea Centre chose not to erect additional signage to mark sites and
objects because it feels that sign posting sites and objects tends to attract vandals and not
offer protection.
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Magamarra, Northern Territory
Background
Magamarra is a marine sacred site within the estuarine waters of the Blyth River on the
Northern Territory Arnhem Coast. The site is within the custodial waters of the Guwowura 333
and Mareang A-Jirra334 clans, upstream from the Blyth River mouth, between the townships
of Maningrida and Ramingining.
Magamarra is a significant part of the Guwowura and Mareang A-Jirra’s religious belief
system. The site embodies the spirits of the ancestors and is their final resting place.
Magamarra is used as part of daily life for the 40 or so people living at remote outstations, or
‘on country’.335
The site is also intrinsically linked to the surrounding cultural landscape that incorporates
many other marine and terrestrial sacred sites. This cultural landscape is significant to a
number of clans in the area in addition to the two that own the sites themselves. For the
Guwowura and Mareang A-Jirra, this cultural landscape explains their creation. The
Magamarra site is owned by the Guwowura and Mareang A-Jirra Traditional Owner groups
and used by other clans with shared boundaries.
Magamarra is a registered sacred site under the Northern Territory Aboriginal Sacred Sites
Act (NT).336 The mouth of the Blyth River has also been a registered sacred site, since 1985,
and it is demarcated as such by signage and a closing line, which is designed to prevent
people (especially fisherman) from entering the sacred site.
The Traditional Custodians of Magamarra enjoy unrestricted access to the site, as it is
situated in Aboriginal waters.337 More than 98.8% of the land comprising the 33,022 square
kilometre Arnhem Coast bioregion is Aboriginal freehold land under the Northern Territory
Aboriginal Land Rights Act 1976 (NT).338
‘Guwowura’ is the clan name as spelled by one Traditional Custodian interviewed for this report.
‘Mareang A-Jirra’ is the clan name as spelled by one Traditional Custodian interviewed for this
report.
335 ‘Outstations’ are the remote settlements of Aboriginal people who have chosen to live on their clan
estates in the Arnhem Land Reserve rather than in the government settlement of Maningrida. The
Bawinanga Aboriginal Corporation is one of Australia's oldest outstation resource agencies,
established in its original form in 1974 to support those people.
336 The author was unable to gain a copy of the listing of Magamarra on the Northern Territory
Register of Aboriginal Sacred Sites due to project resources.
337 Ownership of land is held by the Bawinanga Aboriginal Corporation, which is based in the nearby
township of Maningrida.
338 Centre for Aboriginal Economic Policy Research, ‘Yrralka Rangers: Traditional Owners and Area
of Operation’ webpage, http://caepr.anu.edu.au/poc/partners/Yirralka1_area.php (accessed 9
September 011).
333
334
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In 2009, after many years of consultation and negotiation, the lands around Magmarra were
declared Australia’s thirty-third Indigenous Protected Area known as the ‘Djelk Indigenous
Protected Area’ (Djelk IPA).339 The Djelk IPA is managed by the Bawinunga Aboriginal
Corporation, based in Maningrida, and is serviced by a large team of rangers known as the
Djelk Men’s Rangers and Djelk Women’s Rangers.340
Significance
Magamarra is a significant site used mainly for cultural burial ceremonies related to
commemoration of the dead. It is a place for renewal, reflection and commemoration. It is
the final resting place for all of Guwowura and Mareang A-Jirra people and where the spirits
of their ancestors have chosen to base themselves for eternity.
When we die, our spirits come here to rest in the mermaids’ castle. Our spirits join those of
our ancestors. This is where we are reincarnated in the waters.
Traditional Custodian
Magamarra encompasses objects within the Blyth River waters such as the ‘Barala’ (sand
sculpture), stone statues and other objects that embody ancestral spiritual beings. The site
was created by these ancestral beings in the Dreaming. The physical condition and integrity
of this site is vital to the cultural wellbeing of the Guwowura and Mareang A-Jirra people.
One Traditional Custodian explained that if Magamarra is destroyed through misuse, then
his grandchildren will have no future.
In the Dreaming, spirits visiting here found this place to be very special. They felt that
spiritually the people here were nice; it was a nice place to practice their spiritual customs. So
the ancestor spirits decided that they would stay and honour and replace themselves here, be
reborn again and again here. They found this place to be so peaceful with its friendly people
and beautiful surrounds, so peaceful that they like to stay here with them and be buried with
them. They keep coming back to this place. [The spirits like this place because the people]
are peaceful to live with. [We] live in ceremony and harmony and peace. That’s why
[Magamarra] is so important to us; we built that ceremony and must keep practicing. That’s
why it’s so important for the last 40,000 years; we need to protect this site to allow
continuation. So it can follow on from generation to generation, so that our ancestors will
choose to stay and watch over our children when we die.
Traditional Custodian
Protecting Magamarra means not only maintaining the site’s physical condition, but ensuring
that traditional laws governing interaction and use of the site are observed. The Guwowura
and Mareang A-Jirra people have customary obligations to protect and preserve the
Magamarra sacred site for future generations. They must also ensure that laws governing
339
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Djelk indigenous Protected Area’ webpage,
http://www.environment.gov.au/indigenous/ipa/declared/djelk.html (accessed 9 September 2011).
340 Bawinanga Aboriginal Corporation, ‘Djelk Rangers’ webpage,
http://www.bawinanga.com.au/djelkrangers/index.htm (accessed 9 September 2011).
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interaction with Magamarra, such as gender restrictions and sustainable use of natural
resources, are strictly adhered to.
Arnhem Land is extremely isolated and the Aboriginal people of the region did not
experience sustained contact with non-Aboriginal people until 1957, when a non-Aboriginal
settlement was established in Maningrida.341 As a consequence, traditional cultural
institutions remain strong and customary law, ceremony, language and traditional knowledge
remain an important part of everyday community life342.
The broader cultural landscape
Blyth River and surrounding lands have has many sacred sites. Magamarra was made by
Mermaid Dreaming (‘Nawula’). These ancestral beings shaped the landscape around
Magamarra with their movements and still reside in various manifestations. There is a fork
standing in the water for secret men’s business, which is in the waters of the Gamal
Traditional Custodians. Nearby there are Dreaming trails where sisters walked through the
estuary and left their hair coils. There is also a magpie bird sacred site nearby.
Summary of condition and integrity
 The traditional knowledge that interprets the cultural value of Magamarra is very
vibrant and the site is part of daily cultural practice for Aboriginal people living in the
region.
 Access to Magamarra for the purpose of cultural practice is unrestricted as the site is
located on Aboriginal land.
 The physical condition and cultural integrity of Magamarra is managed and maintained
by the Djelk Rangers, on behalf of the Traditional Custodians, funded under the
Working on Country program through the Djelk Indigenous Protected Area.
 The physical condition and integrity of Magamarra is under threat from unauthorised
use by commercial fishing vessels.
 Other pressures affecting the broader cultural landscape in which Magamarra is
situated include wild buffalo, feral pigs and cane toads. The Djelk Rangers are working
in partnership with the Traditional Custodians to address these issues.
 Overall the Traditional Custodians are happy with the management of Magamarra, but
cultural heritage is still threatened. Greater power to enforce the restricted access of
sacred sites is needed so that Aboriginal communities can stop people trespassing on
their private property. The capacity to enforce legal frameworks is lacking under the
current system of management.
Altman, J. (2008). Fresh Water in the Maningrida Region’s Hybrid Economy: Intercultural
Contestation over Values and Property Rights, Centre for Aboriginal Economic Policy and Research,
Canberra, p 9.
342 Above note 342.
341
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Pressures
Illegal fishing
Magamarra is a registered sacred site and access to the site is restricted. However, the
Blyth River is also a well-known place for recreational and commercial fishers of
Barramundi. One Traditional Custodian explained the impact of commercial fishing in the
following terms:
We want to protect this part of our secret site which affects our cultural identity. Commercial
fishing here destroys our cultural identity. Spiritually we are all connected with living creatures
– if I die, I will be reincarnated to that secret site.
Traditional Custodian
Traditional Custodians perceive illegal fishing activities at Magamarra as the most significant
threat to the condition and integrity of Magamarra and report ongoing problems with
commercial fishermen not respecting Aboriginal law or culture and entering the site at night.
There is a natural barramundi habitat in the estuarine waters of the Blyth River. The only
way to enter these waters is through Magamarra because in other areas of the Blyth River
mouth the waters are too shallow for fishing vessels. In April of 2011 one commercial
barramundi fisherman was fined $5,000 for setting up a gill net at Magamarra.
Magamarra is the only place the fishermen’s boat can enter; there’s a natural fish habitat
there as it’s protected so he keeps coming to my area because he likes the fish.
Traditional Custodian
After the court case, one Traditional Custodian observed that the illegal fishing appeared to
have stopped, but questioned for how long:
The river has been flooded since the court case outcome, so he hasn’t been back but I’m
pretty sure he’ll be back when the weather gets better. He was only fined for one offence but
he’s been coming here and fishing here for years. It’s distressing for people living on country.
Traditional Custodian
Responses
In theory, there is a high level of protection of Magamarra – it is located on Aboriginal-owned
lands, within an Indigenous Protected Area managed by Aboriginal rangers and is registered
as a sacred site. Unlike Traditional Custodians of sacred sites in other parts of Australia,
here traditional custodians have the legal right to control access to the site and to enforce
customary laws associated with the site through offences such as trespass and desecration
of sacred sites. The effectiveness of the legal protection of Magamarra is, however,
questioned in a number of key respects.
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Resources to enforce legal rights
While Traditional Custodians have legal rights under the current system of management,
these rights are contingent on governing bodies acting on their behalf. For example, the
Traditional Custodians do not have the powers to investigate or enforce their legal rights
themselves. They must rely on rangers or police to pursue people who trespass on their
sacred sites.
Lack of power to enforce legal rights
Protection of Magamarra is the customary responsibility of the Traditional Custodians. The
Djelk Rangers who manage the whole protected area support them. The rangers mainly deal
with environmental issues relating to the area but are also called in when people are
destroying or desecrating sites. However, long distances from fisheries enforcement officers
often mean offenders are long gone by the time enforcement officers eventually arrive.
Owing to the lack of enforcement powers available to Indigenous land and sea management
groups there is no local capacity to deal with such incursions on the spot. Unless
perpetrators are caught in the act there is often little scope for action. There would be merit
in exploring the possibility of Indigenous rangers becoming fully-fledged fisheries officers
with enforcement powers.
Lack of resources to monitor compliance with site restrictions
Recreational and commercial fishing are the main threats to Blyth River. The Djelk Rangers
monitor and maintain the diverse biological characteristics of the area by regularly patrolling
the area by land, sea and air, but there are limits to the ground they can cover. Often they
only became aware that sacred sites have been desecrated after the damage has occurred.
Need for better measures to deter fishermen
Clearly marking sacred sites has not been effective in getting commercial fishermen to stay
out of the sacred site. The fines imposed are not a great deterrent ‘because they don’t
amount to much’. The Traditional Custodians would like to see the preservation of Aboriginal
heritage become a pressing national issue, with stricter penalties that are backed by
enforcement.
I think they should be fined $300,000 for a first offence and $500,000 for a second offence.
Then they might not do it, but $5,000 is nothing to these people.
Traditional Custodian
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Biamanga, South Coast, New South Wales
Background
The Biamanga Mountain is a sacred place located three kilometres south-east of Bega, on
the far south coast of New South Wales. ‘Biamanga’ is a dominating feature of the Bega
Valley along with Mount Dromedary (or ‘Gulaga’). It is partially located in Biamanga
National Park, which adjoins Gulaga National Park to the north and the Mumbulla State
Forest. Biamanga Mountain spans an area of approximately 7,000 hectares.
Biamanga and Gulaga mountains are located within the traditional lands of the Yuin
people. Yuin Country includes the coast around Wapengo and Middle Lakes. The Yuin
people have historically and regularly travelled through what is now known as Mumbulla
State Forest to Biamanga and Gulaga Mountains for ceremonial and cultural purposes.
At a state level, primary protection of the site occurs through the operation of the National
Parks and Wildlife Act 1974 (NSW) (NPW Act). Biamanga Mountain is a registered
Aboriginal Place under this Act. The Biamanga Aboriginal Place and the Biamanga
National Park do not have the same boundaries. Some of the Biamanga Aboriginal Place
extends outside the National Park into surrounding areas that include State Forests and
freehold lands.
While this case study focuses on Biamanga as a recognised Aboriginal Place of high
cultural significance, it is also understood that Biamanga is a significant part of the broader
cultural landscape incorporating Gulaga Mountain. As such, throughout this case study
references are made to both mountains and both National Parks.
Significance
Biamanga and Gulaga are twin mountains known to the Yuin people respectively as the
‘Father Mountain’ and ‘Mother Mountain’ and are sacred areas of immense historical and
cultural significance. The Yuin people have historically used the mountains for ceremony.
Biamanga (Father Mountain) is a traditional site of men’s initiation ceremonies and other
activities, while Gulaga is known as the woman’s mountain. The mountains and
surrounding areas contain teaching sites, as well gender-restricted areas of significance.
There are hundreds of registered Aboriginal sites and objects at Biamanga and Gulaga on
the New South Wales Aboriginal Heritage information Management System. The Register
of the National Estate also includes a listing for Mumbulla Mountain that acknowledges five
sacred sites:
 Jack Mumbler’s Dreaming Place;
 Initiation sites one and two;
 Goobai teaching place; and
 The marker stones.343
343
Australian Heritage Database, http://www.environment.gov.au/cgibin/ahdb/search.pl?mode=place_detail;search=place_name%3DBiamanga%3Bkeyword_PD%3Don%
3Bkeyword_SS%3Don%3Bkeyword_PH%3Don%3Blatitude_1dir%3DS%3Blongitude_1dir%3DE%3B
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The lands around Biamanga also include a water hole and swimming hole which were used
on the traditional walkabout from Wallaga Lake to Bega. Two open campsites are located on
the mountain.344
The Yuin people have an undiminished spiritual and cultural connection to the mountains,
which has and continues to be passed down through the generations:
Biamanga has always been frequented by Aboriginal people as a place where we went to get
food, but mainly to talk to the spirits. Elders took the youth there to pass down the knowledge.
Biamanga was a place where we had meetings. There’s a lot of spirituality on this mountain, I
think it’s sad there’s not more now. But there were a lot of things that happened here over the
years, not all positive. Even taking that into consideration it’s a very special place. I’m seventy
five years old and I still go to the mountain for guidance.
Traditional Owner
There is reportedly a slow shift in wider non-indigenous community attitudes in relation to the
value of conserving Biamanga. Many non-Indigenous people from the area are starting to
join the Yuin people to maintain the beauty and wonder of Biamanga:
The interaction between Yuin people with country is largely misunderstood by wider
community, and just as we take comfort and knowledge from country, we also feed into it.
Currently, community attitudes are shifting to allow for the natural and spiritual elements of
Aboriginal culture to be understood better through consultation and compromise. Yuin elders
feel very strongly that Biamanga should be left alone. This doesn’t mean that it should be
inaccessible, but the land must be respected and left untouched. People who previously were
farmers or wood choppers – people that used the land without giving much back are now
beginning to understand the issues; they have more respect now, which means that the Yuin
people have more strength.
Traditional Owner
Summary of condition and integrity
 The areas of Biamanga located within the National Park, and which are Aboriginal-
owned and jointly managed, are well protected.
 While Biamanga is a registered Aboriginal Place (sacred site), those parts of the site
located on non-Aboriginal controlled lands outside the National Park boundary are at
risk of destruction.
 This risk of destruction was recently highlighted when nine hectares of forest within the
Biamanga Aboriginal Place, but located on Biamanga State Forest lands, were illegally
logged by the New South Wales Forestry Commission (trading as Forests New South
Wales) (Forests NSW). The only positive note is that Forests NSW were intending to
log 243 hectares, but through daily community protest the scope of the damage was
limited.
longitude_2dir%3DE%3Blatitude_2dir%3DS%3Bin_region%3Dpart;place_id=1030 (accessed 18 April
2011).
344 Above note 344.
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 The recent case of illegal logging by Forests NSW raises questions about the
effectiveness of Aboriginal Place registration in New South Wales, when it is possible
for logging to be permitted to occur on a registered sacred site, in spite of protests by
the community putting the loggers on notice that the logging activity was illegal.
 The Australian Heritage database describes the present state of Biamanga as ‘natural
status’ and also states that the site does not have any visitation except for research
purposes. Based on the information the authors received from the community, this
status description is inaccurate and needs to be updated.
Pressures
Logging
The primary and most documented threat to the condition and integrity of Biamanga is the
logging in and around the mountain and the Biamanga National Park, which has been
occurring since the 1970s.345
Historically, efforts to protect the area from logging include a protest led by Gubbo Ted
Thomas of the Wallaga Lakes Aboriginal community in 1978 on the basis that Biamanga
was a sacred mountain.346 Inquiries and studies conducted at the request of the Yuin people
in the late 1970s and early 1980s led to a recognition and recording of Biamanga (as
‘Mumbulla Mountain’) as a sacred area for the Yuin people.
However, despite an agreement with the New South Wales Government in 1980, logging
occurred in the core area where the sacred sites are located and also more broadly in
Biamanga Aboriginal Place until 1992.347 The areas which have been logged over the last
forty years are noticeably bare, generally in bad repair and need time to re-grow. Logging
has also resulted in the desecration of the cultural landscape, including sacred sites and
associated flora and fauna.
More recently, in March 2010 the New South Wales Forestry Commission (trading as
Forests New South Wales) approved a logging plan in two areas within Mumbulla State
Forest.348 The two areas form part of the area which was gazetted as Biamanga Aboriginal
Place. Forests NSW holds a licence from the New South Wales Department of Environment,
Climate Change and Water (DECCW) indicating the specific location of Aboriginal objects
and gazetted Aboriginal Places. The logging at Biamanga Aboriginal Place constituted a
breach of their licence conditions.
345Geoff,
B., Peterson, N. and Wesson, S. (2005). Biamanga and Gulaga: Aboriginal Cultural
Association with Biamanga and Gulaga National Parks, a report for the Office of the Registrar,
Aboriginal Land Rights Act (1983) NSW, Cultural Heritage Research Centre, University of Canberra,
pp 54-55.
346 Byrne, D. (1984). The Mountains call me back: A history of the Aborigines and the Forests of the
Far South Coast of NSW, Occasional Paper No. 5, NSW Ministry of Aboriginal Affairs.
347 Bertram, R. (2010). The Management of Aboriginal Cultural Heritage in Biamanga Aboriginal Place
1980 to 2010, www.fiveforests.net/resources/The%20Management%20of%20Biamanga.pdf
(accessed 29 August 2011), p 3.
348 Above note 348, p 1.
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Illegal logging
At the start of April 2010, Yuin elders led a peaceful protest with other environmental
activists against the logging in a bid to protect the land and cultural sites and the area’s
wildlife which includes a key Koala colony.349 It was also brought to the attention of the state
government that logging was occurring in a protected Aboriginal Place, which had not been
authorised by the Minister as per the NPW Act. The logging was suspended temporarily
owing to Forests NSW failure to comply with licensing obligations, but resumed several
weeks later. It wasn’t until late April that the DECCW ordered the logging operations to
cease,350 following an action in the Land and Environment Court led by Traditional Owners
to force DECCW into taking action.
Forests NSW then pursued a group of the protesters with a court action for alleged trespass,
and interfering with haulage equipment; the protesters were found not guilty. 351 The
Department of Environment, Climate Change and Water has since conceded that logging
should not have occurred in these areas and apologised to the community.
The Department of Environment, Climate Change and Water has determined that it will not
be seeking to prosecute Forests NSW for the unauthorised damage to the Aboriginal Place,
claiming that the logging was ‘a mistake’.
The outrage in the community over the case was summed up by Mr Wayne Boom, counsel
for the defence in the court action, who stated:
There is something repugnant about this case. Forests NSW were quite clearly logging an
Aboriginal Place, and then to continue to pursue people because they protested the illegal
logging, there is some irony in that.352
The impacts of non-compliance by Forests NSW (or other loggers) with such legal protection
mechanisms (whether intentional or negligently) and the lack of respect for Aboriginal
culture, include:
 damage to the visual qualities of the landscape;
 endangering of Aboriginal sacred sites (often irreparable);
 damage to wildlife in the area; and
 damage to the social, emotional, cultural and spiritual well-being of the Aboriginal
community.
‘Police called as koala sighting halts Mumbulla logging’, 31 March 2010,
http://www.abc.net.au/news/stories/2010/03/31/2861328.htm (accessed 28 April 2011).
350 ‘Forests NSW slammed in court for illegal logging’, 11 March 2011,
http://www.indymedia.org.au/2011/03/11/forests-nsw-slammed-in-court-for-illegal-logging (accessed
28 April 2011).
351 ‘Forests NSW defends court action’, 18 March 2011,
http://www.abc.net.au/news/stories/2011/03/18/3167126.htm (accessed 28 April 2011).
352 Above note 351..
349
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Tourism
According to one Traditional Owner, an historical threat to the condition and integrity of
Biamanga was unauthorised tours of Aboriginal sacred places and desecration. In a positive
development, this practice has largely ceased since Biamanga was handed back to the
Aboriginal community and became an Aboriginal-owned and jointly managed National Park.
Responses
There are multiple types of protection and recognition of the Indigenous cultural heritage
values of Biamanga, yet there are also significant gaps in the effectiveness of that protection
as demonstrated by the recent issues with illegal logging.
Aboriginal ownership and joint management
Biamanga and Gulaga National Parks were returned to the Yuin people on 6 May 2006,353
and were the third and fourth parks to be returned to Aboriginal people in New South Wales.
Under the hand-back agreement Aboriginal people were given ownership of the national
parks as inalienable freehold land. The lands were vested, on behalf of the Traditional
Owners in the local Aboriginal Land Council, on the condition that the land be leased back to
the National Parks and Wildlife Service to be managed as a National Park.354
Under the hand-back arrangements ‘Aboriginal Owners’ are identified, and make up the
majority of the Aboriginal Board of Management which manages the parks. The other Board
members are comprised of community and government representatives to consult about
issues relating to the management of the park.355 In the early stages of joint management
there was reportedly a lack of understanding between Indigenous and non-Indigenous board
members regarding Indigenous people’s concerns for management of the park, although this
issues is reportedly improving with time.
Legal measures to protect Biamanga
An area of land referred to as ‘Biamanga’ including and surrounding Mumbulla Mountain,
comprising 7508 hectares, was gazetted as an ‘Aboriginal Place’ on 1 June 1984.356 Under
the NPW Act, the Minister for the Environment may, by order published in the Gazette,
declare any place to be an ‘Aboriginal Place’ if in the Minister’s opinion the place is or was of
special significance with respect to Aboriginal culture. The area remained as State Forest
until it was proclaimed as Biamanga National Park on 30 November 1994.357
New South Wales Office of Environment and Heritage, ‘Biamanga and Gulaga national parks
return to Aboriginal ownership’ webpage,
http://www.environment.nsw.gov.au/jointmanagement/biamangagulagahandback.htm (accessed 17
April 2011).
354 National Parks and Wildlife Act 1974 (NSW), Part 4 A.
355 Above note 354.
353
New South Wales Office of Environment and Heritage, ‘Declared Aboriginal Places in NSW’
webpage, http://www.environment.nsw.gov.au/conservation/AboriginalPlacesNSW.htm (accessed 1
May 2011).
357 Above note 354.
356
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Declaration as an Aboriginal Place provides increased protection for an area, rather than just
for individual ‘Aboriginal objects’ within that area. It is an offence under the NPW Act to harm
or desecrate a declared Aboriginal Place.358 In addition, under tougher penalties in effect
from July 2010, it is an offence for a person to cause harm to an Aboriginal Place even if
they did not know it was an Aboriginal Place. The Minister is able to issue permits to harm
Aboriginal Places under the NPW Act, but must consider the values of the place and consult
with the Aboriginal community.
Declaration as a National Park under the NPW Act also offers protection for the cultural and
natural heritage values of the area, as there are limitations on the activities which may be
undertaken in a National Park. Additional protections can also be introduced by the Plan of
Management for the National Park, as developed by the Aboriginal Board of Management.
At the Commonwealth level, Mumbulla Mountain (Biamanga) is also registered on the
Register of the National Estate administered by the Australian Government Department of
Sustainability, Environment Water, Population and Community.359 Mumbulla Mountain
(Biamanga) is not listed on the National Heritage List.
Effectiveness of legal protection
This recent unlawful logging controversy at Biamanga involving Forests NSW demonstrates
the ineffectiveness of the protection offered by registration of the sites under statute. There
appears to be fundamental flaws in regulation process whereby protected heritage sites can
be easily overlooked or ignored with little or no response from the regulators. There is also a
strong message in this controversy regarding the relationship between Aboriginal people
and government.
Failure to prosecute breaches
Prosecuting breaches of legislation is very important in terms of the social and emotional
wellbeing of Aboriginal people and for deterring future breaches. Failure to prosecute
breaches of cultural heritage legislation is a widely held concern for Aboriginal people in
many parts of Australia.360 Failure to prosecute is often a result of the limited availability of
evidence of the illegal activity, and the perpetrator, to support a prosecution. This is
sometimes linked to the failure of government heritage administrators to allocate sufficient
funding to support investigations and prosecutions and a lack of political will.
358
National Parks and Wildlife Act 1974 (NSW), section 86(4).
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
Australian Heritage Database entry for ‘Mumbulla Mountain (Biamanga)’,
http://www.environment.gov.au/cgi-bin/ahdb/search.pl?mode=place_detail;place_id=1030 (accessed
29 August 2011).
360 Schnierer, E. (2010). ‘Caring for Culture – Perspectives on the Effectiveness of Indigenous
Cultural Heritage protection legislation in Queensland, South Australia and Victoria’, a report prepared
for the New South Wales Aboriginal Land Council,
www.alc.org.au/media/69363/caring%20for%20culture%20final.pdf (accessed 29 August 2011).
359
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Eel Traps, Lake Condah, Victoria
Background
The Budj Bim landscape in the Mount Eccles or ‘Tyrendarra’ lava flow in western Victoria is
a region of great natural and cultural significance. Its importance has been recognised
nationally though its inclusion on the National Heritage List. The continuous and ongoing
connection of the Traditional Owners to this country was formally acknowledged in 2007,
when the Gunditjmara were recognised as Native Title holders by consent determination in
the Federal Court.
Volcanic eruptions in the Mount Eccles region began about 20,000 years ago.361The
volcanic activity altered the landscape, making way for the Gunditjmara to establish
permanent settlements in the region. Central to these settlements was the harvest of
‘kooyang’ (short-finned eels, Anguilla australis).362 The Gunditjmara developed parts of the
landscape to enhance the fishery, with eels trapped and held in ponds before being
harvested for local consumption and trade.363
The largest body of water on the Budj Bim landscape, Lake Condah, was crucial to the
traditional eel fishery and contains many of the eel trap structures that remain today.364 Lake
Condah was formed by the partial blockage of the Darlot Creek valley by basalt lava flows
from the volcanic activity.365 In 1954, Lake Condah was drained in an attempt to mitigate
flooding of agricultural land around and upstream of Lake Condah.366 Without a regular
water flow, the eel traps in Lake Condah were rendered unusable.
The Gunditjmara always retained basic knowledge of the eel traps, although much traditional
knowledge was lost with colonisation. Even after the lake was drained in 1954, some
members of the community still went and caught eels on the lake whenever there was a big
rain.
Ollier, C.D. (1981), ‘A buried soil at Mt Eccles, Victoria, and date of eruption’, 98 Victorian
Naturalist 195-199.
362 Crook, D., MacDonald, J., Belcher, C. O’Mahony, D., Dawson, D., Lovette, D., Walker, A. and
Bannam, L. (2008). Lake Condah Restoration Project – Biodiversity Assessment, Arthur Rylah
Institute for Environmental research Technical Report Series No 180, Department of Sustainability
and Environment, Heidelberg, Victoria, p 3.
363 Builth, H. (2004). ‘Mt Eccles lava flow and the Gunditjmara connection: a landform for all seasons’
116 Proceedings of the Royal Society of Victoria 163-182.
364 Above note 363, p 3.
365 Gippel, C.J., Anderson, B.G., Kerr, G. Lloyd, L. and Cooling, M. (2008a). Environmental water
requirements of Darlot Creek and Lake Condah: Issues Paper, Glenelg Hopkins Catchment
Management Authority, Hamilton.
366 Ruge, P. (2004). Lake Condah Water Restoration Business Plan, Lake Condah Sustainable
Development Project, Portland.
361
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Ownership and management
In 2007, the Gunditjmara achieved recognition of their heritage and identity through the
Federal Court of Australia’s Gunditjmara Native Title consent determination.367 In the
consent determination the parties agreed to recognise Gunditjmara Native Title rights to:
 visit and temporarily reside on the land and waters;
 the use and enjoyment of the land and waters, as well as their resources, for domestic
and ordinary use; and
 protect place and areas of importance on the land and waters.
Native Title is managed by the Gunditj Mirring Traditional Owners Aboriginal Corporation. In
addition to this determination, The Gunditj Mirring also administer an Indigenous Land Use
Agreement made with the Victorian Government, which outlines what future actions may
take place in the area and how the ecology will be managed.
Following the Native Title consent determination, the State of Victoria also formally returned
Lake Condah to Gunditjmara people under a separate agreement made in 2008.368 The
parties also entered into the Lake Condah Conservation Management Plan, which obliges
the Gunditjmara to manage the significant heritage values of Lake Condah for the benefit of
the public. While the Gunditjmara have control of Lake Condah, much of the Condah
Wetlands are located on privately owned farming land.
A large part of the Budj Bim National Heritage Landscape is the Mount Eccles National Park,
which is owned by Parks Victoria and cooperatively managed with the Gunditjmara under
the Native Title consent determination. The Gunditjmara also own several other properties in
the area including:
 The Lake Condah Mission, which was returned by the Victorian Government in 1987
under the Aboriginal Land Rights Act.
 The Kurtonitj, Lake Gorrie and Peters properties purchased with assistance from the
Indigenous Land Corporation. Kurtonitj and Peters are currently being considered for
national heritage listing.
 The Allambie, Muldoon and Vaughan’s properties, which were acquired by the
Victorian Government in the 1980s and returned to the Gunditjmara to protect the
significant cultural values of the landscape.
 A 248 hectare parcel of land located on Darlot Creek, a tributary of Lake Condah, that
was declared Tyrendarra Indigenous Protected Area (IPA) in 2003, purchased with
assistance from the former Aboriginal and Torres Strait Islander Commission.
Tyrendarra IPA is owned and managed by Winda Mara, a broader Aboriginal community
organisation. The remaining lands are managed by the Gunditjmara through the Gunditj
Mirring Traditional Owners Aboriginal Corporation.
Lake Condah Sustainable Development Project, ‘Budj Bim National Heritage Landscape’
webpage, http://www.lakecondah.com/budjbim.html (accessed 9 September 2010).
368 Above note 368.
367
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Significance
Aquaculture and economy
Lake Condah is rich in places, stories and objects that demonstrate that Gunditjmara have
lived on, and retained cultural ties with the place for millennia. Dating back thousands of
years, the area shows evidence of a large, settled Aboriginal community systematically
farming and smoking eels for food and trade.369 It is considered one of Australia’s earliest
and largest aquaculture ventures.370
For thousands of years, Gunditjmara society flourished around Lake Condah. They created
ponds and wetlands linked by channels containing weirs and channels to bring water and
young eels from Darlots Creek to low-lying areas, enabling eels to be harvested all year
round.371 Woven baskets were placed in the weir to harvest mature eels.372
These engineered wetlands provided the economic basis for the development of a settled
society with villages of stone huts, built using stones from the lava flow.373 European
settlement occurred in the area in the 1830s.374 The Gunditjmara fought for their land during
the Eumeralla Wars, which lasted more than 20 years.375 At the conclusion of this conflict in
the 1860s, many Aboriginal people were displaced from their traditional lands.376 Some
Aboriginal people refused to move and were eventually housed at Lake Condah Mission,
close to some of the eel traps and within sight of Budj Bim.377
The story of the Gunditjmara and Budj Bim is highly significant because the Gunditjmara
were able to maintain their distinct cultural identity and continuity of attachment to the area in
spite of repeated attempts to dispossess them.
Broader cultural landscape
This complex aquaculture enterprise took place in a broader cultural landscape which is full
of meaning to the Gunditjmara people. According to Traditional Owners, the Gunditjmara
369
Builth, H. (unpublished). The Archaeology and Socio-Economy of the Gunditjmara: a Landscape
Approach, doctoral thesis, Flinders University, Adelaide.
370 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Budj Bim National Heritage Landscape, Victoria’ webpage,
http://www.environment.gov.au/heritage/places/national/budj-bim/index.html (accessed 9 September
2011).
371 Coutts, P., Frank, R. and Hughes, P. (1978). Aboriginal Engineers of Western Victoria, Records of
the Victorian Archaeological Survey, 7.
372 Above note 370.
373 Dawson, J. (1881). Australian Aborigines: the Language and Custom of Several tribes of
Aborigines in the Western District of Victoria, Australia, Robertson, Melbourne.
374 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Budj Bim National Heritage Landscape more information’ webpage,
http://www.environment.gov.au/heritage/places/national/budj-bim/information.html (accessed 9
September 2011).
375 Above note 375.
376 Above note 375.
377 Above note 375.
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witnessed the explosion of Eccles over 20,000 years ago and recognised it as the creation
of an important creation Ancestor.378 The Gunditjmara word for ‘Eccles’ is ‘Budj Bim’, which
means ‘High Head’. The other part of the Ancestor’s head is Mount Napier.
In 2003, the Gunditjmara nominated the Indigenous heritage values of Mount Eccles, Lake
Condah and Tyrendarra for the recently established National Heritage List. The Budj Bim
National Heritage Landscape was subsequently declared by the Australian Government, in
July 2004, for the following outstanding national values:
 the place has outstanding heritage value to the nation because of the place's
importance in the course, or pattern, of Australia's natural or cultural history;
 the place has outstanding heritage value to the nation because of the places'
possession of uncommon, rare or endangered aspects of Australia's natural or cultural
history;
 the place has outstanding heritage value to the nation because of the place's
importance in demonstrating a high degree of creative or technical achievement at a
particular period; and
 the place has outstanding heritage value to the nation because of the place's
importance as part of Indigenous tradition.379
It was the first Indigenous place to be inscribed on the National Heritage list.
Summary of condition and integrity
Water levels
 In 2010, a weir was installed in the Lake Condah drain which has restored water to
Lake Condah. The ultimate success of the weir will be reviewed in 2012 after
completion of a two-year learning period. Half way through the learning period the
outcomes look positive. For example, there has been no nuisance flooding to
neighbouring properties.
 The water level of Lake Condah is still two to three metres below original levels, as
neighbouring properties are using water for their pastures. The Gunditjmara are
presently looking to secure an allocation of water as a ‘cultural flow’.
378
Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
Budj Bim National Heritage Landscape – Mt Eccles Lake Condah Area, Mt Eccles Rd, Macarthur,
VIC, Australia, Australian Heritage Database, Place Details, http://www.environment.gov.au/cgibin/ahdb/search.pl?mode=place_detail;place_id=105673 (accessed 9 September 2011).
379 Lake Condah Sustainable Development Project, ‘Budj Bim National Heritage Landscape’
webpage, http://www.lakecondah.com/budjbim.html (accessed 9 September 2011).
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Condition of aquaculture structures
 It is difficult to assess the condition of the entire aquaculture system because the
Gunditjmara do not know how large the system is - approximately three quarters of the
Tyrendarra lava flow is located on private farming lands.
 Presently there are sections of the traditional aquaculture system completely covered
with water. The community estimate that about 40% of the original system has been
activated and cultural practice has resumed. Other sections are still ‘high and dry’.
 The structures in some sections have been damaged by 100 year old trees which have
grown through them. In other sections, structures have been trampled by grazing
cattle. At the time of writing this report, cattle had only been removed from some parts
of the aquaculture system in the last 12 months. The Gunditjmara have several
applications with the Commonwealth Indigenous Heritage Program for funding to
restore the damaged sections.
Cultural practice
 Since water was restored to Lake Condah, Gunditjmara have been out on country and
‘had a feed of eel’.
 Since the water has started flowing through the system, transmission of traditional
knowledge from elders to young people has started to occur. The lake is sharing its
stories and teaching the community which enhances and informs the community’s
base learning from traditional knowledge. Non-indigenous people are also starting to
share their knowledge of the lake with the Gunditjmara.
Biodiversity
 There are dominant numbers of native species of fish and very low numbers of
introduced species in the freshwater areas.
Pressures
Ongoing water security
Farmers from surrounding areas for agriculture draw water from the Darlots Creek – Lake
Condah system. The Gunditjmara do not have a water allocation and have no way to secure
water flows to Lake Condah, a particular concern in times of drought.
Clearing, draining and stock access
Some small wetlands linked to the Darlots Creek – Lake Condah System are located on
private land and are at risk of clearing, draining and access by stock. These activities put
pressure on the condition of the eel traps and on the biodiversity of the system.
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Environmental management responsibility
The Gunditjmara are responsible for management of Lake Condah. They are accountable to
both the Gunditjmara community and mainstream community. They are under significant
pressure to manage the environment to meet non-indigenous expectations and to meet their
obligations as environmental custodians under traditional law. The Gunditjmara are
especially concerned that the non-Indigenous community may seek to drain Lake Condah
again after the next big flood.
Heritage management responsibility
With National Heritage listing of the Budj Bim landscape comes responsibility on the
Gunditjmara to manage the heritage values of the land. Part of maintaining the heritage
values of this region is restoration of the aquaculture system, for which significant works are
still required. Funding is required to support vegetation removal and reconstruction of
structures. These activities must also be undertaken in a manner that preserves cultural
integrity, by using original materials and the original people.
Financial resources
The Gunditjmara have significant environmental and heritage management responsibilities
towards Lake Condah, which require ongoing financial resources. The community is under
constant pressure to source sufficient internal and external (government) resources to
ensure that Gunditjmara people and the government continue to derive benefits from Lake
Condah. There is also currently limited scope for aquaculture or fishing licences to fully
recognise Gunditjmara people and their culture, heritage and aspirations towards trade in
eel.
Pollution and invasive species
The Darlots Creek – Lake Condah System contains some of the most pristine water in the
state. As such, it is always at threat from invasive species, such as carp, and other
pollutants. Lake Condah is particularly vulnerable to impact because it has only recently
been restored.
Responses
Lake Condah Restoration Project
In 2006, the Victorian Government established the Lake Condah Restoration Facilitation
Team to work towards the restoration of permanent water to Lake Condah. A major
achievement of the project has been the construction of a weir in 2010 to channel water from
the drain onto the bed of the lake. Presently, the project continues its restoration activities at
Lake Condah and in the surrounding wetlands. It is also developing a natural resources
framework for the sustainable development of the area.
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Water allocation
The Gunditjmara are working with the Victorian government to confirm an allocation of water
to ensure the ongoing benefits of restoration of the lake and wetlands is continued in case of
another drought event. They are seeking to have water allocated as a ‘cultural flow’.
It’s amazing now how the broader community realises how valuable water is. It is a vital part
of the environment in terms of its ecological and social values. We are healing country
through water restoration and in the process we are healing our people.
CEO, Gunditj Mirring Traditional Owners Corporation
World Heritage listing
The Gunditjmara are seeking recognition for the Budj Bim National Heritage Landscape on
the World Heritage List.
Cultural tourism
The Gunditjmara are exploring cultural tourism as an avenue that would provide an
economic base to support the community’s ongoing aspirations for land management and
maintenance of culture at Lake Condah. The infrastructure required to support cultural
tourism is slowly being developed, but is expensive and requires capacity building effort.
There are presently several walking tracks and toilets that enable Gunditjmara to take
visitors out into country.
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Lake Eyre, South Australia
Background
Lake Eyre is a large salt lake in the north-west of South Australia, with a total area of 9300
square kilometres. The lake has two sections: Lake Eyre North and the smaller Lake Eyre
South.380 The lake forms part of the Lake Eyre Basin, which is approximately 1.2 million
square kilometres and stretches across South Australia, the Northern Territory, Queensland
and New South Wales.381
Lake Eyre lies in the country of the Arabunna people. The Lake Eyre area is also an
important place for the Wangkangurru–Yarluyandi people to the north and the Dieri people
to the east.
Lake Eyre forms part of the Lake Eyre National Park, which is managed by the South
Australian Department of Environment and Natural Resources (DENR).382 Entry to and
camping in the national park are regulated and incur fees. Unlike some other national parks
in South Australia, the Lake Eyre National Park is not jointly managed by the local Aboriginal
people.
Those areas surrounding Lake Eyre that are not national parklands are generally subject to
pastoral leases.383 Some lands in the north of South Australia, including near or around Lake
Eyre, have been acquired by the Indigenous Land Corporation and the South Australian
Aboriginal Lands Trust. This includes land at Finniss Springs, which is to the south of Lake
Eyre South.384
An ongoing Native Title claim by the Arabunna people encompasses Lake Eyre. There is
also an active Native Title claim to the north of Lake Eyre by the Wangkangurru–Yarluyandi
people and another to the lake’s east by the Dieri people. The Arabunna people have
Encyclopaedia Britannica (2011). ‘Lake Eyre’ webpage,
http://www.britannica.com/EBchecked/topic/199432/Lake-Eyre (accessed 29 August 2011).
381 Commonwealth Department of Sustainability, Environment, Water, Population and Communities,
‘Lake Eyre Basin’ webpage, http://www.environment.gov.au/water/policy-programs/leb/index.html
(accessed 29 August 2011).
382 Adjoining the national park is the Elliott Price Conservation Park, located around the southern
shore of Lake Eyre North. There is no vehicle access to the conservation park.
383 South Australian Arid Lands Natural Resources Management Board (2011). Regional Resources
Management Plan for the SA Arid Lands Natural Resources Management Region: Ten-Year Strategic
Plan, http://www.saalnrm.sa.gov.au/Portals/8/pdf/finalsaalnrmplan_volume1_july10.pdf (accessed 29
August 2011), p 27.
384 South Australian Office of Aboriginal Affairs, ‘Land held by the Aboriginal Lands Trust’ webpage,
http://www.aboriginalaffairs.sa.gov.au/resources/Land (accessed 29 August 2011); Indigenous Land
Corporation, ‘ILC Land Acquisition Activity, South Australia’ webpage
http://www.ilc.gov.au/webdata/resources/files/SA_ILC-LandAcquisition_at_17Aug2010.pdf (accessed
29 August 2011); above note 384, p 27.
380
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concluded an Indigenous Land Use Agreement (ILUA) in relation to mining on land that
extends to the eastern and northern shores of Lake Eyre North.385
According to a 2004 report, there were almost 1500 listed sacred Aboriginal sites in the
South Australian part of the Lake Eyre Basin. However, this figure was acknowledged as a
small fraction of the actual number of sacred places in the area.386
Significance
For many thousands of years, Aboriginal peoples have lived around Lake Eyre, and there
are many important Dreaming stories, tracks and places associated with Lake Eyre. Beyond
the lake itself, there are many sacred and important creeks, waterholes and mound springs
in the area, as well as other places and tracks.
One of the most well known stories relates to the creation of Lake Eyre. According to the
Arabunna people, Lake Eyre was created from the skin of a kangaroo, after a man had
chased it down and eventually succeeded in killing it. The kangaroo history, parts of which
are secret, is connected with initiation ceremony and is very sacred.387 Another Dreaming
story concerning Lake Eyre involves the Warana, a spiritual figure that is the keeper of the
lake.388
Respecting these Dreaming stories and places, and having them respected by others, is
very important for Arabunna people. As Aaron Stuart, chairman of the Ularaka Arabunna
Association, has said: ‘a lot of people think Uluru, Ayers Rock, you know – it’s important to
that Indigenous tribe. It’s the same thing here. Lake Eyre is important to this Indigenous
tribe, the Arabunna people’.389 The Arabunna people have the responsibility to ensure that
Lake Eyre, and the cultural heritage that it contains, are respected.
385
National Native Title Tribunal (2011). South Australia: Native Title Applications and Determination
Areas, http://www.nntt.gov.au/Publications-And-Research/Maps-and-SpatialReports/Documents/Quarterly Maps/SA_NTDA_Schedule.pdf (accessed 29 August 2011); National
Native Title Tribunal, Registered ILUA Summary – Arabunna Area Minerals Exploration ILUA,
http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-RegisteredILUAs/Pages/Arabunna_Area_Minerals_Exploration_ILUA_.aspx (accessed 29 August 2011).
386 Lake Eyre Basin Coordinating Group (2004). Lake Eyre Basin Heritage Tourism: Future Directions,
http://www.lakeeyrebasin.org.au/archive/media/future_directions.pdf (accessed 29 August 2011), p
31.
387 Great Artesian Basin Consultative Council (1998). Great Artesian Basin: Resource Study,
http://www.gabcc.org.au/tools/getFile.aspx?tbl=tblContentItem&id=105 (accessed 29 August 2011), p
202; Shaw, B. (1995). Our Heart is the Land: Aboriginal Reminiscences from the West Lake Eyre
Basin, Aboriginal Studies Press, pp 33–5.
388 Hercus, L. (1971). ‘Arabana and Wanganguru Traditions’ 42 Oceania 94; Elfes, P. The Arrival: The
Lake Eyre Series, http://peterelfesphotography.com/sites/peterelfesphotography.com/files/The Arrival
Catalogue web small.pdf (accessed 29 August 2011).
389 ABC Radio National, ‘Aboriginal Clan Blocks Lake Eyre Sailors’, AM, 3 March 2011
http://www.abc.net.au/am/content/2011/s3153723.htm (accessed 29 August 2011).
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Summary of condition and integrity



Presently access to Lake Eyre is regulated by DENR. A permit is required to boat or
sail on Lake Eyre. At the time of writing this report, in consultation with the Traditional
Owners, DENR is refusing permits for boating on the lake.
There were reports in 2011 of unauthorised sailing on Lake Eyre, in contravention of
DENR regulations and Arabunna customary law.
The level of Aboriginal participation and control of management of Lake Eyre is poor
and has been identified as an important priority for the Lake Eyre Basin Ministerial
Forum and South Australian Arid Lands Natural Resources Management Board.
Pressures
Public access to Lake Eyre
Due to the sacredness of Lake Eyre to the Arabunna people and their cultural
responsibilities for the lake, public access to the lake can conflict with the Arabunna people’s
cultural heritage. While Arabunna people do not want to stop visitors coming to Lake Eyre,
they do not want visitors walking on the lakebed or sailing on its waters.
In managing access to the Lake Eyre National Park, DENR advises visitors that, while the
Arabunna people prefer that no one walks on the lake, it is permissible to walk on the lake’s
edge provided no damage is done to the local environment.390 Written permission from
DENR is required for boating on Lake Eyre, with any boating applications being assessed
against, inter alia, cultural heritage issues associated with Arabunna spiritual beliefs.391 In
consultation with the Arabunna people, DENR is presently refusing to provide permission for
people to sail on the lake.
Recently, controversy has arisen over boating on Lake Eyre. The Lake Eyre Yacht Club was
reportedly advised by DENR in September 2010 to enter negotiations with the Arabunna
people about sailing on the lake. However, in April 2011, without negotiations having
reached a resolution, there were reports that people associated with the Lake Eyre Yacht
Club were sighted sailing on the lake.
Persons found to have sailed on the lake without written permission may be in breach of the
National Parks and Wildlife Act 1972 (SA) and potentially also the Aboriginal Heritage Act
1988 (SA).392
South Australian Department of Environment and Natural Resources, ‘Lake Eyre National Park’
webpage,
http://www.environment.sa.gov.au/parks/Find_a_park/Browse_by_region/Flinders_Ranges_Outback/
Lake_Eyre_National_Park (accessed 29 August 2011).
391 Above note 391.
392 ABC Radio National, ‘Aboriginal Clan Blocks Lake Eyre Sailors’, AM, 3 March 2011,
http://www.abc.net.au/am/content/2011/s3153723.htm (accessed 29 August 2011); CAAMA Radio,
‘Aaron Stuart on CAAMA Radio’, 19 April 2011, http://caama.com.au/aaron-stuart-on-caama-radio
(accessed 29 August 2011); CAAMA Radio, ‘Grace Portolesi on CAAMA Radio’, 18 April 2011,
http://caama.com.au/grace-portolesi-on-caama-radio (accessed 29 August 2011).
390
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Aboriginal involvement in natural resources management
Aboriginal peoples are involved in and consulted as part of the key natural resources
management strategies that affect Lake Eyre. For instance, the Lake Eyre Basin Community
Advisory Committee, a cross-jurisdictional body charged with implementing the Lake Eyre
Basin Intergovernmental Agreement, has two Aboriginal members from South Australia and
has also sought to engage with Aboriginal communities in the Lake Eyre Basin through the
holding of occasional Aboriginal forums.393
However, it is clear that there could be much greater involvement of Traditional Owners in
the management of natural resources surrounding Lake Eyre. The Eighth Meeting of the
Lake Eyre Basin Ministerial Forum in April 2010 decided to change its focus from
‘engagement with’ Aboriginal people to the ‘participation of’ Aboriginal people, so as to
involve Aboriginal communities in determining management responses to issues as they
arise.394 Similarly, the South Australian Arid Lands Natural Resources Management Board
has recognised that the involvement of Aboriginal peoples in resources management is
extremely important. The Board has set targets to be met in the coming years for increasing
Aboriginal involvement.395
Responses
Investigation of alleged unauthorised boating on Lake Eyre
In response to demands by the Lake Eyre Yacht Club to sail on Lake Eyre, the DENR had
initially encouraged negotiation between the club and the Arabunna people. It seems,
however, that this did not resolve the situation, with reports that members of the club had
sailed on the lake without permission from the Arabunna people or DENR.
DENR is reportedly now undertaking an investigation. There is the possibility of prosecutions
being initiated for breach of the National Parks and Wildlife Act 1972 (SA) and potentially
also the Aboriginal Heritage Act 1988 (SA). Whether individuals will be prosecuted, however,
will ultimately be in the hands of the South Australian Government, not the Arabunna people.
Aboriginal involvement in natural resources management
As noted above, key bodies involved in natural resources management around Lake Eyre
have committed to increasing Aboriginal involvement in their processes. In the coming
years, it will be important to see the extent to which these commitments are realised.
393
The Agreement was concluded in 2000 and includes the Commonwealth, South Australian,
Queensland and Northern Territory governments. The Agreement aims to ensure sustainable, crossborder management of the basin, and is guided in part by recognition of the need to conserve and
promote the important cultural values of the basin.
394 Lake Eyre Basin Ministerial Forum, ‘Positive Future for the Lake Eyre Basin’, Press Release, 23
April 2010, http://www.lebmf.gov.au/publications/pubs/leb-communique-20100423.pdf (accessed 29
August 2011).
395 Above note 384, pp 143–5.
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Mining
Mining has not to date had much direct impact on Lake Eyre and its immediate surrounds. 396
This may change in the future, however. The Arabunna people have successfully negotiated
an ILUA with respect to mining to the east and north of Lake Eyre North. The ILUA makes
provision for miners to implement a range of Aboriginal heritage clearance procedures prior
to undertaking explorative activities.397 The extent to which these procedures will be effective
in protecting Aboriginal cultural heritage in the event of any mineral exploration remains to
be seen.
396
For a map of historic and current mining projects in South Australia, see South Australia
Department of Primary Industries and Resources, ‘South Australia’s Resources’ webpage,
http://www.pir.sa.gov.au/__data/assets/pdf_file/0018/10773/203858_009.pdf (accessed 29 August
2011).
397 South Australia Department of Primary Industries and Resources Arabunna Heritage Clearance
Procedures, http://www.pir.sa.gov.au/__data/assets/pdf_file/0014/20444/ilua_arabunna_clearance.pd
(accessed 29 August 2011).
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Wet Tropics World Heritage Area, Queensland
Background
The Wet Tropics World Heritage Area covers almost 900,000 hectares along the north-east
Queensland coast. It is one of the largest rainforest areas in Australia, boasting the unique
and spectacular combination of pristine rainforests bordered by the coral reefs of the Great
Barrier Reef World Heritage Area.
The Wet Tropics has the oldest continually surviving tropical rainforests on earth and is a
biodiversity hotspot.398 It is also a cultural diversity hotspot, home of 18 Traditional Owner
groups collectively referred to as ‘Rainforest Aboriginal people’.399
Land tenure in the Wet Tropics is a combination of more than 730 separate parcels of land
including national parks, state forests, freehold, leasehold and Crown land.400 At least 80
per% of lands in the Wet Tropics World Heritage Area are potentially claimable under the
Native Title Act 1993 (Cth).401 To date there has been no acknowledgement of Native Title
by the courts, although there are 16 active claims.
Significance
To Rainforest Aboriginal people, the Wet Tropics is a series of complex living cultural
landscapes, where natural features are interwoven with religion, spirituality, economic use
(including food, medicines and tools), and social and moral organisation.402 Rainforest
Aboriginal people have customary obligations for management of their country under
Aboriginal law. Meeting land management and spiritual obligations as defined under
traditional law and custom is very important.403
398
United National Educational, Scientific and Cultural Organisation, Wet Tropics of Queensland,
World Heritage Listing, http://whc.unesco.org/en/list/486 (accessed 9 September 2011).
399 Number of Traditional Owner groups based on information received from Phil Rist in an interview
for this report and supported by information in the Wet Tropics of Queensland World Heritage Area
Regional Agreement. The authors note that this figure is different to the figure (19) quoted on the Wet
Tropics Management Authority website.
400 Wet Tropics Management Authority, ‘Native Title’ webpage,
http://www.wettropics.gov.au/rah/rah_title.html (accessed 9 September 2011).
401 Yarrow, D. (1996). Review of Aboriginal Involvement in Management of the Wet Tropics World
Heritage Area, report prepared for the Wet Tropics management Authority, Cairns.
402 Horsfall, N. (1990). Aboriginal cultural issues in the Wet Tropics of North Queensland, Department
of Environment and Heritage, Cairns; Webb, T. (1995). Some notes concerning joint-management
and cultural survival in the Wet Tropics World Heritage Area in Fourmile, H., Schnierer, S. and Smith,
A. (eds.) An identification of problems and potential for future Rainforest aboriginal cultural survival
and self- determination in the Wet Tropics, report to the Wet Tropics Management Authority, James
Cook University, Townsville, pp 68-78.
403 Review Steering Committee (1998). The review of Aboriginal involvement in the management of
the Wet Tropics World Heritage Area, a report prepared for the Wet Tropics Board of Management, p
XVII.
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Rainforest Aboriginal people are tied to their country through story places, birthing places,
naming places (it is cultural practice to be named after significant sites), animals and
plants.404 It is this connection to country which is valued above all else. Their cultural,
economic and spiritual wellbeing strongly linked to the Wet Tropics environment. According
to Traditional Owners it is difficult to explain the significance of the Wet Tropics.
It is difficult to explain the importance of this place in words. You have to come with me into
my country and I’ll tell you about this waterhole or that tree. We are part of it, part of that
landscape. It is something you have to experience.
Traditional Owner
Summary of condition and integrity
 The Wet Tropics are in good condition overall.
 The Wet Tropics are recognised for natural heritage values but not for Indigenous
cultural values.
 Access and use of rainforest resources are fairly unrestricted for the nine Traditional
Owner groups405 represented by Girringun Aboriginal Corporation, a land and sea
management group.406
 There has been no determination of Native Title in the Wet Tropics.
 Aboriginal cultural values are generally not given equal weight with other biodiversity
conservation and economic values.
 The social impacts of development on Rainforest Aboriginal people are not adequately
explored in development planning processes, nor are they given equal weighting in
development decisions.
Pressures
Development
The Wet Tropics region is the most populous of northern Australia and the population
continues to grow.407 The demands of this increasing population of residents and visitors, as
well as the associated industry and infrastructure developments, puts great pressure on the
cultural and environment integrity of the Wet Tropics.408
404
Wet Tropics Management Authority (2005), Wet Tropics of Queensland World Heritage Area
Regional Agreement.
405 The nine Traditional Owner groups represented by Girringun Aboriginal Corporation are: Bandjin,
Djiru, Girramay, Gugu Badhun, Gulnay, Jirrbal, Nywaigi, Warrgamay and Warungu.
406 Girringun Aboriginal Corporation is a legally incorporated organisation under the Aboriginal
Councils and Associations Act 1976 (Cth).
407 Wet Tropics Management Authority, ‘Pressures on the World heritage Area – Development’
webpage, http://www.wettropics.gov.au/th/th_development.html (accessed 9 September 2011).
408 Above note 408.
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Rainforest Aboriginal people aspire to have complete and unrestricted access to their
country.409 While access to and use of the rainforests by Rainforest Aboriginal are largely
unrestricted, access is being increasingly impacted upon by large-scale infrastructure
development. For example, the proposed Bruce Highway upgrade will go through a
culturally-significant marine area and restrict access to a place used by generations of
Rainforest Aboriginal people to hunt, and to teach children to hunt, turtle and dugong.
How do you quantify that impact? How do you measure that? What’s the dollar figure on that?
The social impact is immense. If we can’t go there anymore, if we can’t teach our children to
hunt there anymore, then part of our culture is gone.
Traditional Owner
Some Rainforest Aboriginal people feel that economic interests always trump cultural
interests and little significance is given to the social impacts of development.
Unauthorised destruction on private land
Rainforest Aboriginal people feel that their ability to protect cultural heritage on private
(freehold) land is severely compromised. An example was provided of one landholder
destroying ancient cycad palms after having been notified of their cultural heritage values by
the Aboriginal community.
Responses
Greater Aboriginal involvement in management
Management is undertaken by the Wet Tropics Management Authority in partnership with
government agencies, land managers, land owners, Rainforest Aboriginal people, the
tourism industry, conservation and community groups and the broader community. The
preamble of the Wet Tropics World Heritage Protection and Maintenance Act 1993 (Cth)
recognises the ‘significant contribution Aboriginal people can make to the future
management of cultural and natural heritage within the Area, particularly through joint
management agreements’.410
Despite this, the customary responsibility of Rainforest Aboriginal people to maintain and
manage the Wet Tropics remains a contentious issue. Traditional Owners feel that
acknowledgement of Native Title would give them more power to make decisions about
access, use, maintenance and management of their Country.
Official recognition of shared values
Recognition of cultural values would provide better protection of Rainforest Aboriginal
cultures and ensure equal emphasis on managing the region for all its values – biodiversity
conservation, economic and cultural. Rainforest Aboriginal people have been advocating the
recognition of their cultural values since the Wet Tropics was declared a World Heritage
409
410
Above note 404, p 19.
Wet Tropics World Heritage Protection and Maintenance Act 1993 (Cth), preamble.
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Area in 1988. They want to see the Wet Tropics listed on the World and National Heritage
lists for their cultural values, as well as natural values.
Listing the Wet Tropics for its cultural value on the World Heritage list would send a clear
message to the world that Aboriginal people are a really significant culture to the whole world.
Traditional Owner
The 2005 Wet Tropics Regional Agreement provided in-principle support for recognition of
cultural values of the Wet Tropics on the National Heritage and World Heritage lists. Yet to
date Rainforest Aboriginal people have struggled for recognition. As part of the process,
some Traditional Owners have been required to travel to Canberra to demonstrate their
heritage, connection to county and the cultural value of the Wet Tropics in a process that
some found insulting.
Better enforcement of cultural heritage laws and more adequate fines
When unauthorised destruction of Indigenous cultural heritage occurs, there are few
examples of perpetrators being prosecuted by the Queensland government under state
cultural heritage laws. Although no specific example was provided by the Traditional Owner
interviewed for this report, the Aboriginal community reportedly view the fines imposed by
these laws as inadequate and as failing to provide a sufficient economic deterrent to
developers.
Cultural heritage mapping
Some Aboriginal land and sea management groups are undertaking their own projects to
map cultural heritage. For example, the Girringun Aboriginal Corporation uses Global
Positioning System (GPS) to map cultural heritage in the region on a Geographic
Information System (GIS). Girringun maintains a database with several thousand entries,
which is not shared with the Queensland state cultural heritage database. The GIS operator
is in high demand by other Traditional Owner groups, which are trying to set up their own
cultural heritage mapping databases.
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Kimberley region, Western Australia
Background
The Kimberley, the most northern region of Western Australia, covers approximately
424,517 square kilometres. It consists of both tropical and arid areas, and has wet and dry
seasons. Approximately half of its population of 35,000 is Indigenous.
While recent National Heritage listing processes have focused on the ‘West Kimberley’,
Traditional Owners generally do not consider the region as divided rigidly into east and west,
and there is a very strong cohesive identity among Kimberley Aboriginal peoples. There are
approximately 30 language groups in the Kimberley (and a similar number of Native Title
claim groups), with people organising themselves into five regional cultural blocs (North
Kimberley, Dampier Peninsula, Desert Central Kimberley, East Kimberley and Southern
Kimberley).411 Many people still live on country at outstations.
The main forms of land tenure in the Kimberley are Crown land, pastoral leases (including
Aboriginal pastoral leases, which cover over one-third of the Kimberley), Aboriginal Lands
Trust reserves, freehold and leasehold. Native Title also affects much of the Kimberley. At
the time of writing, there had been Native Title determinations to over 50% of the region, and
about 90% of the region was subject to either a Native Title application or determination.412
Native Title rights in a number of places in the Kimberley extend to exclusive possession.
The Kimberley Land Council is the peak Native Title organisation for the region and is
involved in most Native Title issues in the Kimberley.
There are a number of registered cultural heritage sites throughout the Kimberley, though
many Traditional Owners choose not to register heritage because of perceived inadequacies
in Western Australian cultural heritage laws (in particular, the focus on individual sites,
places and objects rather than cultural landscapes) and a desire to not reveal the location of
sacred places.413 There are also currently three declared Indigenous Protected Areas (IPAs)
in the Kimberley (the Paruku IPA, the Warlu Jilajaa Jamu IPA and the Uunguu Stage 1 IPA),
with several others in consultation stages.414
Several agreements over the use of Aboriginal land, particularly in the context of mining and
resource extraction, have been negotiated in the region. Following protracted negotiations
and at-times fraught disagreement among Traditional Owners (which found its way into the
411
Griffiths, S. and Kinnane, S. (2011). Kimberley Aboriginal Caring for Country Plan, Kimberley
Language Resource Centre, Kimberley Aboriginal Law and Culture Centre, Kimberley Land
Council and Kimberley Aboriginal Pastoralists Incorporated, http://klrc.org.au/projects/projects/caringfor-country (accessed 29 August 2011), p 35.
412 Above note 412, pp 28–33; Government of Western Australia, ‘Native Title: Kimberley Claims’
webpage, http://www.nativetitle.wa.gov.au/Claims/Kimberley/Pages/Default.aspx (accessed 29
August 2011).
413 Above note 412, p 32.
414 Above note 412, p 70.
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courts), Goolarabooloo Jabirr Jabirr Traditional Owners recently agreed to a proposed gas
precinct planned for James Price Point in the Western cultural bloc in a multi-billion dollar
agreement. At the time of writing, the agreement was awaiting approval by the Federal
Environment Minister.415
Significance
The practice and maintenance of Aboriginal cultural traditions in the Kimberley remain very
strong overall. Traditional Owners have identified four broad cultural landscapes in the
Kimberley: Saltwater Country, Desert Country, River (freshwater) Country, and Rangelands
(cattle) Country.416 Each has its own significance, incorporating many important tracks, sites,
animals, plants, stories and law. For instance, the central and north Kimberley is renowned
for rock art associated with Wandjina. As Traditional Owner from Uunguu country, who has
since passed away, explained:
The Wandjina came from the wind and travelled the land and made this earth, and sea, and
the mountains, the rivers, the waterholes, the trees, the plants, the animals, the language and
then the people. Wandjina made everything. Wandjina then gave us the law to follow and
gave us the land.417
Viewing cultural heritage atomistically, in terms of individual sites or areas, is seen by
Kimberley Traditional Owners as problematic and generally fails to capture their conceptions
of cultural heritage. As one Traditional Owner interviewed for this report said: ‘our heritage is
not connected to sites – it travels across country. It is the spirit of the country and there are a
few special places where that spirit comes out.’
Kimberley Traditional Owners, under their law, have authority for and obligations to their
country. For instance, according to Wandjina-Wunguur Law, of the Wunambal and
Gaambera people, visitors can come to Uunguu country but they must first get permission.
For the Wunambal and Gaambera people, managing country is a responsibility inherited
from parents, grandparents and ancestors, and it comes from belonging to country. 418
The identity and culture of many Kimberley Aboriginal people is closely linked to the natural
world:
Our Aboriginal name is named after the area where our father found us. So, I was a crocodile,
a salty. ... So whenever I’m going up the coast, I speak to the crocodile. They know what I’m
talking about. The birds know what I’m talking about. They know. Because the land, the
Kimberley Land Council, ‘Traditional Owners Consent to James Price Point Agreements’, Press
Release, 6 May 2011, http://klc.org.au/2011/05/09/traditional-owners-consent-to-james-price-pointagreements (accessed 29 August 2011).
416 Above note 412, p 15.
415
417
Wunambal Gaambera Aboriginal Corporation (2001). Land of Wandjjina and Wungurr: Ngauwudu
Management Plan, http://www.savanna.org.au/downloads/ngauwudu.pdf (accessed 29 August 2011),
p 15.
418 Above note 418, pp 5 and 7.
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language and the living things on the earth know what I’m talking about. Doesn’t matter me,
but other languages too. Across the Kimberley.
Janet Oobagooma, Dambimangarri Elder 419
Aboriginal people throughout the Kimberley are also linked through long-standing and
continuing systems and routes of exchange, known in the Kimberley as the Wunan. The
Wunan involves the transmission and movement between Kimberley groups (and beyond) of
resources, law, culture and marriage partners. Common items of trade in the past have
included pearl shells from the Southern Kimberley and spearheads from the Northern
Kimberley.420
Summary of condition and integrity
 The Kimberley region is in good condition overall.
 The condition and integrity of Aboriginal cultural heritage is threatened by mining and
industrialisation, unregulated tourism, cattle and feral animals, and barriers to
Traditional Owners accessing country.
 Currently there is a National Heritage listing process underway for the West Kimberley,
which would recognise and protect a number of elements of Aboriginal cultural
heritage. Many Kimberley Traditional Owners feel that limiting heritage listing to the
west is inadequate and would prefer Kimberley-wide listing.
 Native Title, some of it entailing exclusive possession, has been determined over more
than 50% of the Kimberley, with approximately a further 40% subject to active Native
Title applications.
 While there are instances of Aboriginal cultural heritage in the Kimberley being
registered by Traditional Owners, Traditional Owners typically choose not to register
heritage.
 There are three declared IPAs in the Kimberley with more in consultation stages. IPAs
have facilitated the involvement of Kimberley Aboriginal people in managing their
country.
 Many active ranger programs are in operation throughout the Kimberley, which have
enabled culturally appropriate natural resource management.
419
Kimberley Land Council (2010). National Heritage Listing: Part III, Wanjina Wungurr Cultural
Landscape,, http://www.youtube.com/watch?v=LioOm-ZJ5n4&NR=1 (accessed 29 August 2011).
420 North Kimberley Saltwater Country Steering Committee (2010). North Kimberley Saltwater Country
Plan, http://uploads.klc.org.au/2010/07/Saltwater-Country-Plan.pdf (accessed 29 August 2011), p 14;
Blundell, V. and Layton, R. (1978). ‘Marriage, Myth and Models of Exchange in the West Kimberleys’,
11 Mankind, p 231.
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Pressures
There is a range of pressures that threaten the condition and integrity of Aboriginal cultural
heritage which have been identified by Kimberley Traditional Owners. These relate to:
 public access to cultural heritage sites;
 Traditional Owners’ access to cultural heritage sites;
 identifying the right people for particular areas of country and involving those people in
management decisions;
 the transmission of law, culture and language on country;
 respect for Aboriginal rights and Aboriginal knowledge;
 managing country;
 the lack of economic opportunities on country;
 resource and organisational issues concerning governance on country;
 information management on country;
 partnerships (especially with government) in caring for country; and
 protocols for caring for country.421
Several key pressures, raised in an interview, are discussed below.
Mining and resource extraction
As the Kimberley, like other areas in Western Australia, is so rich in natural resources and
minerals, mining and industrialisation represent substantial pressures upon Aboriginal
cultural heritage. Traditional Owners in the Kimberley and their representative organisations
generally take a pragmatic and proactive stance towards mining, accepting that further
development in the region is inevitable. Typically they seek to maximise the benefits and
minimise the potential harms that can accompany mining.
At times, divisions emerge between Traditional Owners over what constitutes acceptable
development from a cultural heritage point of view. Such tensions have most recently been
evident with respect to a proposed natural gas development at James Price Point on the
Dampier Peninsula. While the Goolarabooloo Jabirr Jabirr Traditional Owners have now
formally approved the development, some Traditional Owners and others remain opposed.
The development is awaiting final approval from the Federal Environment Minister.422
Native Title provides important leverage to Traditional Owners in the Kimberley, but it does
not give them the power of veto over developments such as mining. Nonetheless, it had
421
Above note 412, p 44.
Collins, B., ‘The Fight Over Kimberley Gas’, ABC News (online), 16 September 2010,
http://www.abc.net.au/local/stories/2010/09/02/3000398.htm?site=kimberley (accessed 29 August
2011).
422
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been the policy of the former Western Australian Labor Government not to proceed with
developments without Traditional Owners’ consent.
This policy has been abandoned under the current Government. This was made clear when
Premier Colin Barnett resolved to compulsorily acquire the land at James Price Point for the
gas development if a timely agreement between Traditional Owners and the gas company
Woodside could not be reached. The power of government to proceed with developments
without Aboriginal consent represents a substantial imbalance in bargaining power. Former
Director of the Kimberley Land Council, Wayne Bergmann, said of the change in policy:
‘That’s a gun to the head tactic and I’d be disappointed if that’s the way we’re moving
forward.’423
Public access to cultural heritage sites
A significant issue facing Kimberley Traditional Owners is the extent to which members of
the general public are able to access and interfere with cultural heritage sites. There is a
particular problem with tourists and tour operators coming onto country without respecting
cultural heritage or protocols surrounding the entry to country. There have been a number of
instances where important sites and tracks have been damaged. As one interviewee
explained:
Unmanaged access to rocks is a real issue. The rocks may be physical sacred sites in the
landscape and people don’t know how to recognise them and don’t realise they are there. For
example, significant stone arrangements. There have been instances of people taking stones
and making a fire out of a significant cultural heritage site.
There are instances where people have taken human remains from caves and rearranged
skulls so they can get better photographs – it is totally culturally inappropriate to do this. It is
totally culturally inappropriate to just visit the site where the skulls are.
Traditional Owner
Tourists have also reportedly been found splashing water against rock art sites, so as to
improve the image quality of photographs. In addition to resulting in damage to cultural
heritage, unauthorised access to cultural heritage sites also causes major distress to
Traditional Owners.
Traditional Owners’ access to cultural heritage sites
There are real issues concerning Traditional Owners’ access to their country and cultural
heritage. Where their access is impeded, Traditional Owners can find it difficult to maintain
their cultural practices, transmit their knowledge and uphold their responsibilities for country.
Traditional Owners have expressed concern about access to country on pastoral leases not
held by Aboriginal people. Aboriginal people have in some cases been locked out of such
leases, even where they have coexisting Native Title rights over the land. Many Traditional
Tetlow, M., ‘Division Over Gas Plans for the Kimberley’, ABC News (online), 17 October 2008,
http://www.abc.net.au/local/stories/2008/10/17/2394489.htm (accessed 29 August 2011).
423
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Owners have fears for their safety when visiting country or cultural heritage sites on nonAboriginal pastoral leases, even where they have recognised Native Title rights to do so.
Another accessibility issue relates to the logistical difficulties associated with accessing
some areas of country and cultural heritage sites. This is exacerbated by the remoteness of
many sites. Traditional Owners often lack the resources (for example, vehicles) to access
their cultural heritage, and there is little in the way of transport support to facilitate such
access.
Feral animals damaging country and cultural heritage sites
Common across the Kimberley is the problem of cattle and feral animals such as camels
causing damage to country and cultural heritage areas. These animals spoil water holes,
spread weeds and cause erosion.424 An interviewee also said that there is a problem of feral
animals running up against rock art sites.
Responses
Greater Traditional Owner involvement in cultural heritage management
Through IPAs, ranger programs and ILUAs, Traditional Owners in the Kimberley have
been officially afforded increased involvement in the management of their cultural heritage
and natural resources. Recent amendments to Western Australian legislation have also
sought to enable greater joint management by landholders, including Traditional Owners,
over parks and reserves.425 However, Traditional Owners want greater control, through
increased management roles and expanded powers of enforcement.
Under IPAs, for instance, Kimberley groups are looking at getting regulations put in place
that require visitors to get permission for access (for example, visitor passes) and give
Traditional Owners powers to ask unauthorised visitors to leave.
Another example concerns ILUAs. At present, much of the focus with ILUAs is at the
regional level. However, if the focus could be shifted to the local level, this could provide
Traditional Owners with a more direct say over local country and cultural heritage.
Facilitating Traditional Owners’ access to cultural heritage
More support and resources are needed to facilitate Traditional Owners’ accessing cultural
heritage and country. This should be manifest in the provision of greater resources to
Traditional Owners for accessing country, including through IPAs and ranger programs as
well as transport support. Greater efforts also need to be directed towards the negotiation
of ILUAs or other agreements with non-Aboriginal landholders in the Kimberley
(particularly pastoralists), so that Traditional Owners can be confident of safe and
unimpeded access to their country. Recent amendments to Western Australian legislation
have sought to remove barriers to Traditional Owners’ access to parks and reserves.426
424
Above note 412, pp 49 and 54.
Conservation Legislation Management Amendment Bill 2010 (WA).
426 Above note 426.
425
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Cultural heritage signage, maps and protocols
The development of cultural heritage signage, maps and protocols is an important means
of controlling and regulating visitor access to cultural heritage in the Kimberley. To some
extent Kimberley Aboriginal peoples have already begun to undertake this work
themselves through the development of plans for ‘caring for country’, though further work
and resources are needed in this respect. 427 Such plans identify key problems and
priorities for cultural and environmental management and protection. Through such plans,
Traditional Owners are able to make known the importance and content of their law and
knowledge for cultural heritage protection, and offer practical implementation strategies.
Over the coming years it will be important to see the extent to which these plans have
been successfully implemented, further plans developed and their contents heeded by
governments, corporations and visitors to the Kimberley.
427
See, for example, above note 412;
North Kimberley Saltwater Country Steering Committee (2010). North Kimberley Saltwater Country
Plan, http://uploads.klc.org.au/2010/07/Saltwater-Country-Plan.pdf (accessed 29 August 2011);
Wunambal Gaambera Aboriginal Corporation (2001). Land of Wandjjina and Wungurr: Ngauwudu
Management Plan, http://www.savanna.org.au/downloads/ngauwudu.pdf (accessed 29 August 2011).
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