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How does cultural heritage differ across States and Territories?

First Nations cultural heritage is managed primarily by the states and territories through various legislative and policy settings. There is as yet no nationally coordinated approach to the management of cultural heritage. 

Australia-wide, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) protects the National Heritage List including First Nations, natural, and historic places. It is currently being reviewed.

Offshore, the Underwater Cultural Heritage Act 2018 (UCH Act) protects underwater cultural heritage including Australia’s First Nations underwater cultural heritage in Commonwealth waters.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 enables the Commonwealth Government to intervene and, where necessary, preserve and protect areas and objects of particular significance to Australia's First Nations peoples from being desecrated or injured.

The Heritage Act 2004 (HA (ACT)) protects and conserves both Indigenous and non-Indigenous heritage, including the protection of places and objects with natural heritage significance, cultural heritage significance, or that are Aboriginal, or of Aboriginal tradition which may include intangible cultural heritage that connects First Nations people with place.

There are offence and enforcement provisions for breaches of the legislation.

The Heritage Act establishes the ACT Heritage Council with only one member representing the First Nations community. The Council is responsible for maintaining the register of heritage places and objects, and using its decision-making power, has the power to approve excavations or applications for statements of heritage effect in relation to works that may damage or diminish the heritage value of a protected place or objects.

Heritage agreements relating to conservation of significant objects or places may provide more robust protections than the Act.

The Nature Conservation Act 2014 and the Planning Act 2023 can intersect with the Heritage Act.

The ACT Heritage Council and ACT Heritage (within the Environment, Planning and Sustainable Development Directorate) work together to recognise, protect, conserve and celebrate the ACT's unique heritage places and objects.

 

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Cultural heritage in NSW is primarily dealt with by the National Parks and Wildlife Act 1974. Other protections are afforded by:

It is an offence under the National Parks and Wildlife Act 1974 to damage an Aboriginal object or place. If you are proposing works or an activity that may cause harm to Aboriginal cultural heritage, you need to apply for and be granted an Aboriginal Heritage Impact Permit (AHIP) before the work or activity can take place.

The Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW can be used by individuals or organisations considering undertaking activities that could harm First Nations objects. 

The guide Aboriginal Cultural Heritage Consultation Requirements for Proponents sets out requirements to consult with Aboriginal people who hold knowledge about the significance of Aboriginal cultural heritage relevant to an AHIP application. 

The First Nations Guideline - Case Studies on First Nations community engagement for renewable energy projectsrequired under Section 4 of the Electricity Infrastructure Investment Act 2020, set minimum standards for how energy infrastructure proponents negotiate and engage with First Nations peoples and communities about employment and income opportunities.

The Aboriginal Cultural Heritage Advisory Committee is established under section 27 of the National Parks and Wildlife Act 1974 to advise Government on matters affecting First Nations cultural heritage. The Committee may make recommendations on any matter relating to the identification, assessment and measures to improve the care, control and management of First Nations cultural heritage in NSW.

The Aboriginal Heritage Impact Management System (AHIMS) is established and regulated by the National Parks and Wildlife Act 1974 and holds information about recorded First Nations sites, objects and declared places in NSW. In 2020, AHIMS had 100,000 records of objects and places.

 

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The Heritage Act 2011, the Northern Territory Aboriginal Sacred Sites Act 1989 (NTASSA) and the Aboriginal Land Rights Act 1976 (Cth) (ALRA) all contribute to the protection of First Nations cultural heritage in the Northern Territory.

The Heritage Act 2011 does not protect all aspects of Aboriginal cultural heritage but offers automatic protection for all First Nations and Macassan archaeological places and objects throughout the Northern Territory, including an obligation to report the discovery of Aboriginal and Macassan archaeological places and objects to the Heritage Branch. If a site has an associated First Nations tradition it will also be considered a sacred site for the purposes of the NTASSA.

If you’re proposing any activity that could affect Aboriginal and Macassan archaeological places, you must contact the Heritage Branch. Principles of free, prior and informed consent must be applied, as set out in Dhawura Ngilan

The Heritage Branch supports the 11-member NT Heritage Council, set up via the Act to provide advice to the Northern Territory Government on matters affecting the Territory’s cultural and natural heritage. At least two Council members must be of Aboriginal descent, with six members appointed by the Minister for Arts, Culture and Heritage at their discretion.

The Heritage Act 2011 includes a Heritage Register maintained by the Northern Territory Department of Lands, Planning and Environment.

The Northern Territory Aboriginal Sacred Sites Act 1989 (NTASSA) protects all Aboriginal sacred sites on land and water in the Northern Territory, and also has the potential to protect intangible cultural heritage.

The Act mandates the incorporation of custodians’ views and includes a general requirement for the wishes and interests of Aboriginal people to be taken into account in decision-making processes and power exercises relating to sacred sites.

The Act established the Aboriginal Areas Protection Authority (AAPA) − an independent authority overseeing the protection of sacred sites, with a Board of two government nominated members and ten Aboriginal custodians appointed in equal numbers of women and men from a panel nominated by the NT Land Councils.

AAPA is responsible for maintaining the Register of Sacred Sites, which in 2018 contained information on more than 12,000 sacred sites in the Northern Territory. Aboriginal custodians may apply to have their sacred sites registered under the Act, however all sacred sites in the NT are protected whether they are known to the AAPA or not.

NTASSA operates in conjunction with the Aboriginal Land Rights Act 1976 (Cth) (ALRA) to protect Aboriginal sacred sites in accordance with Aboriginal tradition.

Offences include entering or remaining on land that is a sacred site without permission, as well as offences of usage or working on a sacred site, desecrating a sacred site, or non-compliance with an Authority Certificate (issued where the AAPA considers there to be no substantive risk to sacred sites, or if an agreement has been reached with custodians) that results in damage to a sacred site or distress to a custodian.

Other Acts of relevance include the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

 

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The Aboriginal Heritage Act 1988 (SA) guides the protection and management of 'tangible' Aboriginal cultural heritage including sites and objects. 

Under section 23 of the Aboriginal Heritage Act 1988, it is an offence to damage, disturb or interfere with an Aboriginal site, object or remains without authorisation from the Minister for Aboriginal Affairs.

There are also criminal penalties where information relating to a First Nations site, object, remains or traditions is divulged in contravention of First Nations tradition.

The Aboriginal Heritage Act establishes the Aboriginal Heritage Committee (all-Aboriginal membership) to act in an advisory role for the Minister to decide what is placed on the State’s Register, which in turn appoints Recognised Aboriginal Representative Bodies (RARBs) to advise the Minister in relation to specified sites and objects. In areas where native title has been determined, the Prescribed Body Corporate or Registered Native Title Body Corporate (RNTBC) is the RARB, if they agree to be appointed and are approved by the Committee. 

Heritage agreements with proponents provide more robust protections for Traditional Owners than the legislation would alone.

The Aboriginal Lands Trust Act 2013 also offers cultural heritage protections. The Act established the Aboriginal Lands Trust with membership of only First Nations people holding land titles on behalf of First Nations people of South Australia. The Aboriginal Land Trust’s role is to lease, mortgage or otherwise deal with the Trust’s land including land development.

The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 provides vests title of certain lands to the Anangu Pitjantjatjara Yankunytjatjara people.

The Maralinga Tjarutja Land Rights Act 1984 is only relevant to First Nations Traditional Owners in the Maralinga lands and applies the same conditions as the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981

The Anangu Pitjantjatjara and Maralinga Tjarutja Acts established each a ‘body corporate’ of Traditional Owners and, through an elected Executive, empowers decision-making over development, access and other matters.

Proponents seeking to conduct activity on Anangu Pitjantjatjara Yankunytjatjara land or Maralinga Tjarutja land must apply directly to the Executive Board. If the Board declines the application, the proponent may request the application be referred to an arbitrator appointed by the Minister, such as a judge of the High Court, the Federal Court of Australia, or the Supreme Court of a State or Territory of Australia.

 

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Early engagement with the relevant Traditional Owners or RARB (Recognised Aboriginal Representative Bodies) is encouraged to ensure projects are planned to minimise the risk of damage to Aboriginal heritage.

 

 

 

 

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The Aboriginal Heritage Act 2006 (AH Act) (Vic) provides for protection and management of Aboriginal cultural heritage, including Aboriginal places, objects and ancestral remains. Aboriginal people are recognised as the owners of their heritage, and there are legislative processes in place for the return of places, objects and ancestral remains.

The Act also provides for intangible cultural heritage protection, including 'any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public'; and any intellectual creation or innovation based on or derived from anything referred to these.

There are criminal penalties for knowingly damaging cultural heritage which can include orders for financial reparation or any other reasonable steps toward restoration of the damage.

A central system of Registered Aboriginal Parties (RAPs) determine the approach to cultural heritage in relation to their registered area, including:

  • considering applications for cultural heritage permits
  • evaluating and approving or refusing cultural heritage management plans
  • entering into cultural heritage agreements
  • reporting to the independent statutory body, the Victorian Aboriginal Heritage Council responsible for managing the system of RAPs and advising the Minister, on an annual basis.

The Act legislates a Victorian Aboriginal Heritage Register be maintained. You can search the Aboriginal Cultural Heritage Register and Information System here.

The Act works in conjunction with the Planning and Environment Act 1987 to manage permits and work approvals relating to cultural heritage. Permits are voluntary, and cultural heritage management plans (CHMPs) may be voluntary or required under legislation in certain circumstances, such as where an Environment Effects Statement requiring an assessment of the potential environmental impacts of a proposed development is required under the Environment Effects Act 1978.

Other legislation providing for the protection of cultural heritage includes the Traditional Owner Settlement Act 2010 (Vic) where some activities having a significant impact on Traditional Owner rights cannot go ahead without the consent of the Traditional Owner group, and the Heritage Act 2017 (Vic) protecting non-Indigenous heritage.

The Charter of Human Rights and Responsibilities Act 2006 (Vic) grants Aboriginal people a ‘cultural right’ including the right to enjoy culture, identity, language, kinship ties and the relationship to land and water.

 

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The Aboriginal Heritage Legislation Amendment and Repeal Act 2023 managing Aboriginal heritage in Western Australia repeals the Aboriginal Cultural Heritage Act 2021 and reinstates, with modifications, the Aboriginal Heritage Act 1972. The Act commenced on 15 November 2023. 

Before undertaking any activities on land, you should check for First Nations heritage using the Aboriginal Cultural Heritage Inquiry System (ACHIS) which provides locations and information about known First Nations heritage in Western Australia. 

Approval is only required where there is potential for any harm to a First Nations site.  

There are different types of approval under the Act, and in the Aboriginal Heritage Regulations 1974. Approval may be required from either the Minister for Aboriginal Affairs or the Registrar of Aboriginal Sites for any activity which may harm an Aboriginal site. There are four types of authorisations:

  1. Section 18 consent – for more significant impacts and harm to Aboriginal sites 
  2. Section 16 authorisation – for excavation purposes (generally related to research)
  3. Regulation 7 approval – to bring plant and equipment to an Aboriginal site
  4. Regulation 10 consent – for more minor activities and impacts

The Aboriginal Heritage Act 1972 Guidelines can assist in determining whether an intended land use poses a risk of committing an offence under the Act.

Licences, permits and authorities are required for a range of activities, and are issued under legislation including the Conservation and Land Management Act 1984Biodiversity Conservation Act 2016, Swan and Canning Rivers Management Act 2006 and Rottnest Island Authority Act 1987.

The State Government’s advisory body the Heritage Council of Western Australia provides legal protection to places that have been assessed as being important to the State as vested under the Heritage Act 2018. You can search that database here.

 

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