Indigenous heritage

Indigenous heritage is fundamental to all aspects of Indigenous cultures. It has spiritual, historical and social value by connecting Indigenous people to their Country, and thereby also to particular social relationships and custodial obligations. Indigenous heritage also has wide-ranging scientific and environmental value, especially through informing environmental management and protection.

Indigenous heritage is critical in creating and maintaining connection to Country and kin:

 

Australia’s rich and diverse Indigenous heritage is the result of over 65,000 years of Aboriginal and Torres Strait Islander peoples living in close connection with the land, seas and all things within it. We are custodians of Country, with deep responsibilities to actively care for and manage all aspects of our culture and lands. While we as Aboriginal and Torres Strait Islander peoples are extremely diverse, with more than 300 language groups across Australia, there are many shared foundational aspects to our cultures. Dr Terri Janke, Wuthathi–Meriam woman

There is growing recognition in Australia of the importance of protecting and progressing Indigenous rights, including in relation to heritage. Protecting Indigenous heritage, and enabling Indigenous Australians to access and to speak for Country and to carry out traditional practices is imperative for Indigenous people’s wellbeing. Key actions that are still needed include more inclusion and empowerment of Indigenous people in heritage decision-making and management, and legislative reform to ensure that these obligations are met (see Indigenous heritage legislation) (HCOANZ 2020):

 

Aboriginal and Torres Strait Islander people are the Custodians of the oldest continuous culture on Earth. The significance of this heritage transcends Australia’s national boundaries and tells a story which is relevant to all of humanity. Aboriginal and Torres Strait Islander heritage tells a story of a deeply spiritual people connected through their culture to their environment. The age and resilience of Aboriginal and Torres Strait Islander culture alone demonstrates that all people everywhere can benefit from an understanding of their culture. Aboriginal and Torres Strait Islander heritage shows the story of human ingenuity and a deep and spiritual relationship with nature, a relationship that through the manipulation of ecological processes has led to the Australia we know today.

Definition and types of Indigenous heritage

Indigenous cultures, and the heritage that underpins them, are living. The heritage does not reside only in the past; it is a vital aspect of the lives and cultures of Australia’s Indigenous people today. Heritage is not only integral to the health and wellbeing of communities today, it is the foundation of spiritual and cultural connection and vitality for future generations of Indigenous people:

 

Non-Indigenous systems and structures most often compartmentalise and separate knowledge into distinct groups, but these separations are counter to Indigenous knowledge systems that, simplistically speaking, are built upon more holistic and complex interrelationships. For example, heritage in Australia is most often broken into categories such as ‘historic’, ‘natural’, or ‘geoheritage’, but it must be recognised that Indigenous communities, whose complex knowledge, land management practices and cultural obligations have facilitated the highly successful and sustainable management of Country and ‘heritage’ places for the longest time imaginable – more than 65,000 years – did not and do not use these siloed constructs.

 

If this report, or any report, were written purely from an Indigenous perspective, these categories would not be viable, and it is important to reflect on and to recognise that the structures we work within across all fora in Australia are still deeply colonial, always silencing Indigenous perspectives.

 

Within heritage contexts, categorisations most often negate complexity and privilege non-Indigenous ways of seeing, knowing and doing. One such separation that also must be addressed are the ideas that rely on notions of ‘urban’ and ‘remote’. Within the world view of many diverse Indigenous peoples, there is no place in Australia, whether urban or remote, that does not have belonging to Indigenous communities and Traditional Owner groups. Many places that hold deep heritage significance for Indigenous communities occur in urban areas, both in ‘natural’ landscapes (such as wetlands) and in built form. Colonisation has resulted in many people being forcibly moved off their traditional homelands, and new connections to Country and to heritage have been formed as a result of these disruptions. Zena Cumpston, Barkandji woman

The holistic Indigenous conception of heritage does not separate, but rather entwines, tangible and intangible heritage – they are symbiotic and inseparable. Tangible Indigenous heritage comprises significant sites, site complexes, serial sites, features, resources and objects. Intangible Indigenous heritage comprises inherited traditions or living expressions such as oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature or traditional arts and crafts.

Cultural heritage practice in Australia most often views cultural heritage as being either tangible or intangible. Forcing Indigenous heritage into one or other category risks misunderstanding this core component of Indigenous heritage and how to care for it.

The 2011 and 2016 state of the environment reports highlighted the importance of intangible heritage in all aspects of Indigenous heritage and identified the urgent need to recognise intangible aspects of Indigenous heritage as a critical component of its resilience (Schnierer et al. 2011, Mackay 2016a). In recent years, there has been some shift in acknowledging that physical Indigenous heritage sites include intangible cultural values that are inseparable from those considered tangible (see case study: Budj Bim Cultural Landscape inscribed on the UNESCO World Heritage List in 2019). Indeed, non-Indigenous people do not often mentally separate tangible and intangible heritage (McDonald 2011).

Cultural landscapes are increasingly being recognised in Indigenous heritage and systems of management. ‘Cultural landscape’ refers to the dynamic interactions between people and Country, and includes the natural environment, the spiritual and traditional knowledge of that environment, and the cultural practices and activities applied there:

 

Cultural landscapes are holistic and reflect the management and modification of Country over many thousands of generations for the benefit of all. They are the ‘planning units’ of choice for Traditional Owners. Cultural landscapes can be both material and symbolic and include Traditional Owner societies’ unique worldview, sense of being, history, institutions, practices and the networks of relationships between human, animals, plants, ancestors, songlines, physical structures, trade routes and other significant cultural connections to Country. (Victorian Traditional Owners 2021)

The United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage (2003) defines ‘intangible cultural heritage’ as:

 

… the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated with them – that communities, groups and individuals recognize as part of their cultural heritage.

This intangible cultural heritage, transmitted from generation to generation, is constantly re-created by communities and groups in response to their environment, and their interaction with nature and their history. It provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

Despite more than 180 other nations having ratified the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, Australia has not ratified this key international convention. This is a significant omission, as the convention aims to raise awareness of, and protect, the uses, expressions, knowledge and techniques that people recognise as an integral part of their cultural heritage. Intangible heritage – such as oral traditions, performing arts, social practices, rituals, festive events, and traditional craft knowledge and techniques – are part of the value of many Indigenous and historic places, and need to be considered as part of traditional conservation and management of natural and cultural heritage.

Victoria introduced the first intangible cultural heritage law in Australia in 2016 as an amendment to the Aboriginal Heritage Act 2006. As of June 2021, Victoria remains the only state with any provision to specifically protect intangible cultural heritage through legislation (VAHC 2021a):

 

… while these laws are a welcome and positive change, signifying a move away from highly prevalent and outdated interest in the protection of relics, more needs to be done to ensure appropriate control of cultural heritage by Victorian Aboriginal peoples into the future.

Country

There are marked differences in conceptions of ‘the environment’ between Indigenous and non-Indigenous people in Australia. For many diverse Indigenous people and communities, the ‘environment’ is perhaps best understood as Country. This includes land and sea Country (see the Indigenous and Marine chapters). Country is the foundation and the core of all Indigenous cultures, and is integral to all aspects of the lives of Indigenous people.

Indigenous people have a deep and grounded connection to their ancestral landscapes and the law, stories, histories, knowledge and ancestors embedded within the landscapes. The meaning of Country is much more than just custodianship or connection to land, as explained by Yawuru man Professor Mick Dodson (Reconciliaton Australia n.d.):

 

When we talk about traditional ‘Country’... we mean something beyond the dictionary definition of the word. For Aboriginal Australians, we might mean homeland, or tribal or clan area and we might mean more than just a place on the map. For us, Country is a word for all the values, places, resources, stories and cultural obligations associated with that area and its features. It describes the entirety of our ancestral domains. While they may all no longer necessarily be the title-holders to land, Aboriginal and Torres Strait Islander Australians are still connected to the Country of their ancestors and most consider themselves the custodians or caretakers of their land.

An overarching aspect of Indigenous cultures is the role that Indigenous communities must actively play as custodians of Country. Many diverse Indigenous communities view Country in the same way that western culture may view a living relative – as a reciprocal relationship that involves nurturing and caring.

Kado Muir, Deputy Chair of the National Native Title Council, elucidates the deep respect that guides interactions with Country, and the care shown by Indigenous people and communities when sourcing and using resources from Country (K Muir, pers. comm., 9 August 2021):

 

The Aboriginal ochre mine Wilgie Mia in Murchison is one of the oldest continuing operating mines in the world. The philosophy behind our traditional mining practices, our ochre mines and quarry pits is one of deep respect for the spirit of the resources and the land. Through ceremony and ritual, Aboriginal people gave back to the spirits of those raw materials through a philosophy of reverence.

Damage done to Country significantly affects the wellbeing of Indigenous communities. The deep distress caused by damage to Country impacts Indigenous communities significantly. People are devastated by damage to Country, for their ancestors who reside within, for the negation of their custodial responsibilities to keep culture strong for the cohesion of their communities today, and for the cultural inheritance of future generations. An online survey conducted for this report invited Indigenous stakeholders to express their views on the state of the environment. Overwhelmingly, respondents identified the correlation between the negative impacts on the health of Country and on their own health (also see Approach).

Songlines

Songlines are paths that track across Country and skies, representing many millennia of Indigenous knowledge that has been collected, protected and transmitted. While highly complex, location specific and therefore difficult to adequately explain, songlines may be seen as law and maps for living (Neale & Kelly 2020:43). They exist as a fundamental tool to maintain Country, and contain vital knowledge of heritage and Country. Moreover, they are living tools that embed and mediate history, ecological knowledge, relationships, ancestral beings and cultural belonging on Country.

Songlines rely on the continued health of Country, and people’s continued access and connection to it. When Country is damaged or altered, so too are songlines and the knowledge they embody and enact. This jeopardises the health and wellbeing of Country, and of the communities who rely on the continued transmission of this knowledge for cultural continuity and to enable custodial responsibilities to be performed (K Adams, Wiradjuri peoples, pers. comm., 30 September 2021):

 

Ceremonies, rituals and stories create experiences and memories that impact on mental health and wellbeing in positive ways. They do this by generating connections which allow people to know who they are, where they belong and how to confidently act in the world.

Songlines, also known as song spirals, are recorded and passed on through traditional story, song, dance and ceremony. They incorporate Indigenous Dreaming and spirituality, as well as knowledge about the environment, landscape and sites through which the songline travels. This includes detailed understandings of endemic natural phenomena, natural landmarks and culturally significant heritage sites.

As explained by Gay'wu Group of Women (2019):

 

Songspirals have been here a long time. Forever. They are Yolŋu Law. They bring us into being and they link us with the land, to Country. They come from the land and they create it too. It is not just that song spirals created our land a long time ago, but they keep on creating it, and us, and everything in our Country.

Languages and place naming

Indigenous languages are part of the Indigenous heritage that defines Country. Australia is home to more than 300 distinct traditional languages and around 800 dialects (AIATSIS). Recognition of the power of language in the maintenance of culture and heritage has grown in recent years. The United Nations declared 2019 the International Year of Indigenous Languages, and the Australian Government supported Indigenous languages through the Indigenous Languages and Arts program (Office of the Arts). Furthermore, in 2020, the decade 2022–32 was declared the International Decade of Indigenous Languages (UNESCO 2020).

Although Indigenous languages are considered critically endangered in Australia (DITRDC et al. 2020), many languages are in a state of revitalisation. Indigenous organisations and knowledge holders are working to revive or strengthen language in their communities (AIATSIS) (see the Indigenous chapter).

More and more traditional place names are being restored, which acknowledges and shows respect to Indigenous people as Traditional Custodians of Country, and their deep relationship with the land, sea and waters. There have been changes to the names of well-known places that are important natural heritage and cultural sites, such as Uluṟu-Kata Tjuṯa National Park (1993), Budj Bim Cultural Landscape (2017), Kati Thanda–Lake Eyre (2012) and K’gari/Fraser Island (2021).

Collections and records

Since the beginning of colonisation, government agencies, cultural institutions (such as museums and galleries) and individuals (including pastoralists, researchers, ethnographers, linguists and filmmakers) have all collected and stored Indigenous heritage. Indigenous heritage held in collections outside Indigenous communities includes:

• items of movable cultural property, including examples of weapons, technologies and crafts
• cultural environment resources, including minerals, flora and fauna
• Indigenous ancestral remains, including burial artefacts
• Indigenous human genetic material, including DNA and tissues
• literary, performing and artistic works, including music, dance, song, ceremonies, symbols and designs, narratives, poetry and languages
• scientific, agricultural, technical and ecological knowledge, including medicines and sustainable use of flora and fauna
• documentation of Indigenous people’s heritage and genealogies in all forms of media, including scientific and ethnographic research reports, papers and books, films and sound recordings.

Most museums and galleries in Australia and around the world hold vast collections of Indigenous heritage whose provenance does not reflect informed consent. Many objects were taken under inequitable power relations or duress, or worse (Burden 2018).

Indigenous knowledge

Over time, researchers have recorded much Indigenous knowledge. Indigenous oral traditions are important heritage, as the primary means through which knowledge is shared in Indigenous cultures (Gwatkin-Higson 2019). There are many detailed cultural stories that have been orally transmitted in communities for tens of thousands of years and correspond with events now ‘discovered’ in western science (Nunn & Reid 2016). Many diverse Indigenous communities across Australia still practise oral traditions, storing and transmitting knowledge in their communities.

Concerns arise regarding heritage recorded and archived without protections and protocols that were designed in cooperation with communities. Often, Indigenous heritage has been collected without free, prior and informed consent, and without cultural grounding and protocols being understood. The heritage collected includes books, sound recordings, films, photographs, databases and information drawing on Indigenous knowledge. Secret and sacred knowledge has also been collected, posing danger for Indigenous communities and for those who handle and view it, including items that should never be seen by those outside the cultural context within which they were made. The appropriation of Indigenous heritage causes hurt, distress and great harm to Indigenous communities (Gibson 2019).

Written and recorded Indigenous heritage also contains information that can be used to strengthen, maintain, protect and illuminate Indigenous heritage. Indigenous communities are increasingly asserting their rights to access these collections, and there have been strong calls for repatriations of cultural items, recordings, ethnographies and records (Croft et al. 2019).

The knowledge collected in heritage surveys, and clarification around who can access and use it, are becoming increasingly important questions (Janke 2009). There remains an urgent need for collecting institutions, Elders, communities and researchers to work together to strengthen this heritage and its capacity for intergenerational transmission (Mackay 2016b). The Dhawura Ngilan vision outlines best-practice standards for collection and return of Indigenous heritage (see Dhawura Ngilan: a vision for Aboriginal and Torres Strait Islander heritage in Australia).

Collections of ancestral remains

Since colonisation began, Indigenous ancestral remains were collected in their thousands across Australia, purportedly for ‘scientific study’, despite almost no scientific activity eventuating (Faulkhead & Berg J 2010, VAHC 2020b). Overseas and Australian institutions still hold many of the ancestors that were collected. There is a custodial obligation, as well as staunch community obligation and aspiration, to repatriate ancestral remains. It is known within the diverse cultures of Australia’s Indigenous people that ancestors cannot rest when they are far from their Country. Many diverse Traditional Owner groups continue to highlight the need to return ancestors to Country (Faulkhead & Berg J 2010), but very few of the ancestors or objects have been returned and repatriated (Russell Cook & Russel 2016).

The return of ancestral remains is a highly important, sensitive and ongoing issue for many Indigenous communities. This is exemplified in a recent documentary co-production from the Victorian Aboriginal Heritage Council, Monash University and Museums Victoria titled Returning our ancestors (VAHC).

Reflecting on the history of the past 40 years in relation to the return of ancestral remains, Emeritus Professor Paul Turnbull, a leading expert in this field noted (Turnbull 2020):

 

If there is to be a resting place, then the challenge will be to design it so as to encourage reflection on the complexities of repatriation. It should also be an institution that recognizes and assists those communities who have the possibility of reburying their ancestors, but can only do so with resources and support to resolve complications in repatriation arising from both continuities with the ancestral past and the legacies of change wrought by diverse experiences of settler colonialism.

Turnbull states that a resting place should also encourage our reflection on the past entanglement of western science in the colonial subjugation of Australia’s Indigenous peoples, and the implications this has today for medical and scientific research involving Indigenous people (P Turnbull, School of Historical and Philosophical Inquiry, Faculty of Humanities and Social Sciences, University of Queensland, pers. comm., 30 September 2021).

Recognition and protection of Indigenous heritage

Indigenous Australians have limited control and decision-making power over the management of Indigenous heritage sites across Australia (McGrath 2016). This is despite their inherent living connection to, and understanding of, heritage sites and their surrounding environments from traditional knowledge systems, cultural practices and ecological management.

 

It’s just disappearing in front of our eyes. It’s soul-destroying and we have no actual input to any of those processes. This government is a law to itself when it comes to the management. When I say management, I really mean destruction. SoE Indigenous workshop participant (Murawin 2021b)

The lack of an Indigenous rights-based approach to heritage management demonstrates a disregard for Indigenous people’s right to self-determination, and the right to have control over their cultural heritage and traditional practices, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) (United Nations 2007).

Indigenous involvement and advisory support within heritage management does not adequately allow Indigenous decision-making and self-determination. Although Indigenous advisory councils are often included within frameworks for heritage management, they are often overlooked in the ultimate decision-making. Indigenous advisory councils are often only ‘consulted’ and are not meaningfully incorporated from the start, so they are unable to embed their aspirations in projects through co-design (Murawin 2021b).

 

The Traditional Owners work very hard to provide input but are typically excluded from key decision making. This top-down, hierarchical, growth-focused way of being is really panning out and allowing and causing the destruction we see today. SoE Indigenous workshop participant (Murawin 2021a)

Planning authorities are seen as contributing to a major imbalance in decision-making and lack of respect (Murawin 2021c). It is no longer reasonable to suggest that limited understanding of Indigenous peoples, communities and culture, or a lack of resources, are sufficient reasons for inadequate attention to Indigenous heritage values:

 

Planning authorities and proponents tend to see Indigenous heritage issues as a ‘tick the box’ or something to ‘get around’ rather than part of meaningful engagement and consultation.

SoE Indigenous workshop participant (Murawin 2021c)

Existing legislative and administrative structures limit direct Indigenous involvement in heritage management and provide very little power to influence the management of Indigenous heritage. For example, the Australian World Heritage Indigenous Network (AWHIN), a former parallel advisory body to the Australian World Heritage Advisory Committee (AWHAC), is no longer active despite Indigenous community and AWHAC interest in reviving AWHIN.

 

Indigenous peoples are not just stakeholders; they should have a guaranteed seat at the table for determining what happens in local places and local country and their traditional lands. They should be decision-makers about the whole structure of grants and funding; they should not be competing with big industry groups in terms of who has a say over a place. The whole system needs to be changed. SoE Indigenous workshop participant (Murawin 2021a)

There is a growing recognition in Australia of the importance of progressing Indigenous control over Indigenous matters. In 2017, Statement from the Heart spoke of the need for, among other things, ‘constitutional reforms to empower our people and take a rightful place in our own country’ (The Uluru Statement 2017). The UNDRIP articulates minimum standards for the survival, dignity, security and wellbeing of Indigenous peoples worldwide, and several of the UNDRIP provisions speak directly to the enjoyment, management and protections of Indigenous heritage (see the International laws and agreements section in the Indigenous chapter). The seminars undertaken for this report found that the lack of self-determination for Indigenous communities to manage their heritage results in perpetuation of disadvantage, loss of heritage, loss of connection to land and culture, negative impacts on wellbeing and physical health, and intergenerational trauma (Murawin 2021b).

A major positive change in relation to the recognition and protection of Indigenous heritage is the Uluṟu climb closure; Uluru is sacred to Aṉangu people, and a place of deep cultural and spiritual significance to their Tjukurpa (law) (Parks Australia). Aṉangu people had continuously voiced their concern and wish to stop people climbing Uluṟu, including when it was formally handed back to the Traditional Owners in 1985. In October 2019, the climb was closed, signalling a broader acceptance of Indigenous heritage and cultural values.

The online survey found that most respondents (72.7%) believed Australians see Indigenous heritage as either very important or important, and a further 18.2% believed Australians see it as somewhat important. Only 10.2% said Indigenous heritage was not important to all Australians. However, the overwhelming majority of respondents (95.5%) believed that non-Indigenous people have no understanding of Indigenous heritage or do not understand it very well (Murawin 2021b, Murawin 2021a).

Dhawura Ngilan: a vision for Aboriginal and Torres Strait Islander heritage in Australia

Following extensive consultation with Indigenous stakeholders and relevant peak bodies, the chairs of Australia’s national, state and territory Indigenous heritage bodies presented Dhawura Ngilan: a vision for Aboriginal and Torres Strait Islander Heritage in Australia, accompanied by Best practice standards in Indigenous cultural heritage management and legislation. On 16 September 2020, the Heritage Chairs of Australia and New Zealand (HCOANZ) welcomed and supported the 2 documents.

In September 2020, the HCOANZ meeting agreed that there was a need to modernise Indigenous heritage protection laws in Australia and committed to take the Dhawura Ngilan standards back to each of their governments for active consideration and response (DAWE 2020b).

Dhawura Ngilan was designed and produced to inform policy-makers, provide a foundation for legislative change and bring action in matters of Indigenous heritage. It represents a significant step forward for Indigenous heritage, bringing together the consensus views of many Indigenous experts. It highlights areas that need urgent attention, and provides best-practice recommendations.

The Dhawura Ngilan vision addresses inconsistencies in Indigenous heritage legislation across Australia and identifies areas that are lacking or outdated. It calls for heritage legislation in Australia to embody the perspectives of Australia’s Indigenous people, and to empower and respect them through informed consent and decision-making powers.

The Dhawura Ngilan vision recommends consistent and high standards of best practice in Indigenous cultural heritage management, and meaningful Indigenous inclusion across all areas, with an emphasis on free, prior and informed consent as foundational. The vision also calls for:

• action in transmitting invaluable knowledge in communities
• expanding dual and sole naming that illuminates Indigenous knowledge and relationships through language
• expanding education about Indigenous heritage in the wider community
• returning ancestors
• caring for Country by recognising culturally significant species
• championing World Heritage listings.

National and state heritage framework

The current framework for protection of heritage in Australia attempts to support Indigenous management of sites and cultural landscapes. However, it does not adequately recognise Indigenous perspectives and rights. A key limitation is the failure to recognise Indigenous intangible knowledge. Legal frameworks generally tend towards preservationist ideas, rather than acknowledging and supporting living culture and people. Our current legal frameworks are constructed without any meaningful input from Indigenous people, limiting their effectiveness in providing protections or fulfilling Indigenous aspirations.

The interface between heritage law and development approval laws often poses challenges for protecting Indigenous heritage. Although attempts have been made to integrate the operation of the two, there remains a tension between protecting Indigenous heritage and development.

 

We need to look at how we manage our resources and frame it in a way going forward for the greater good of the people and not the good of multinational companies and corporations. SoE Indigenous workshop participant (Murawin 2021a)

There are many inconsistencies between national, state and territory legislation for protecting heritage.

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) addresses tangible cultural heritage, because it is recognised as part of the environment. This definition excludes non-place-based or ‘movable’ tangible cultural heritage, which is dealt with separately under the Protection of Movable Cultural Heritage Act 1986 (Cth). This Act was amended in 2018 to better reflect human rights standards of Indigenous self-determination for permits relating to the import and export of Indigenous cultural property.

Legislative change to better protect Indigenous heritage has been slow, with only Victoria making recent effective changes. In 2016, Victoria amended its Aboriginal Heritage Act 2006 to include provisions to register and protect Aboriginal intangible heritage. Only one application to have intangible heritage placed on the intangible register has been made and registered in 5 years of operation, highlighting that the operation of the register needs review and possibly more effective co-design.

In 2020, the Australian Government flagged its intention to address Indigenous heritage protection reform opportunities as part of its response to the review of the EPBC Act. However, at the time of this report, no changes have been introduced (DAWE 2020b).

Indigenous heritage lists and registers

Heritage lists and registers are incomplete, with under-representation of places recognised for their Indigenous heritage value (HCOANZ 2020). Indigenous heritage is represented to some extent in World Heritage, National Heritage and Commonwealth Heritage lists (see Heritage recognised under the EPBC Act). For example, the Budj Bim Cultural Landscape – on the National Heritage List since 2004 – attained World Heritage listing in 2019 as the first place in Australia recognised solely for its Indigenous cultural values (see case study: Budj Bim Cultural Landscape inscribed on the UNESCO World Heritage List in 2019). In addition, 4 of Australia’s 19 World Heritage properties are recognised as having mixed natural and Indigenous cultural significance: Kakadu National Park, Uluṟu–Kata Tjuṯa National Park, the Willandra Lakes Region and the Tasmanian Wilderness.

Adding new sites to the National and Commonwealth heritage lists is widely considered to be a bureaucratic and cumbersome process, which frustrates many under-resourced Indigenous communities (Wagner 2019, McConnell 2021b).

National Heritage listings recognise Country through the listing of cultural landscapes, as opposed to individual sites, such as the Sydney Cultural Crescent Rock Art (New South Wales) nomination. This area includes a significant body of rock art across 2 million hectares. Traditional Owners liken the area to history books and libraries that provide a tangible record of Indigenous traditions, belonging, presence, cultural practices and knowledge systems.

Although places can be listed on the National Heritage list for their Indigenous heritage values, there is no separate national Indigenous heritage register. However, all states maintain an Indigenous cultural heritage register or inventory, and both territories have heritage registers that include all heritage domains, as well as Indigenous cultural heritage databases. These inventories list primarily archaeological sites and objects, but only include places that have been identified through a heritage listing process. Thus, these registers represent only a very small proportion of Indigenous heritage places that actually exist. The number and rate of listings vary between states and territories (Figures 1 and 2).

Identification of sites

The 2015 Australian Heritage Strategy proposes a consistent approach to the recognition, protection and management of Indigenous heritage sites. However, no mechanism has been established to develop a national approach and standards to assess and protect Indigenous heritage.

Indigenous heritage is inadequately documented and protected. Many Indigenous communities distrust existing registers, and hesitate to disclose sites and knowledge of significance. This distrust is not misplaced and comes from a long and difficult history of Indigenous knowledge being co-opted, appropriated, misconstrued and misused by non-Indigenous people, often to the great detriment of Indigenous knowledge holders and communities.

 

I think government needs to work more in re-establishing, if there ever was, trust, rapport and relationships with mob. Particularly because of the impact of their decision-making with heritage. SoE Indigenous workshop participant (Murawin 2021a)

In addition, Indigenous people are historically sceptical of using heritage registers for fear of the risk of discovery and subsequent destruction of sacred or culturally significant sites. In the past, Indigenous people have decided to reveal intangible heritage to government only as a last resort to protect sacred places from harm. Distrust of mainstream systems means that Indigenous heritage sites can be overlooked and therefore destroyed. There is a call for balance between upholding and preserving sacred knowledge and the capacity to engage all the legislative protections.

This concern is sometimes recognised in legislation. The National Parks and Wildlife Act 1974 (NSW) includes opportunity for Aboriginal owners to withhold and keep confidential information about Indigenous sites and culture in the public interest. The Director-General can determine that specified information relating to the cultural values can be withheld in the public interest (s. 161, National Parks and Wildlife Act 1974).

Indigenous heritage is often only identified reactively as part of environmental impact assessment processes, rather than proactively. If a thing or place is identified and subsequently declared as an Indigenous object or place under the National Parks and Wildlife Act 1974 (NSW), it is considered an offence to damage or obstruct the protected items. However, it should be noted that a system of permits may arise, wherein the focus may shift from preventing use or obstruction in the first place to managing destruction.

 

Yet there’s permit after permit after permit going out under that process in this government, to the point where we can’t count how many sites every week this government is wiping out from this landscape that are physical connections for us as Aboriginal peoples to the way our old people lived, our connection to our Ancestors. SoE Indigenous workshop participant (Murawin 2021a)

It is evident that all cultural heritage could be better supported by planning and assessment systems that seek to identify sites before they are negatively impacted.

Another challenge around registers and identification of sites is establishing who can speak to the knowledge. Generally, Indigenous heritage workers, Traditional Owner groups, surveyors and Land Councils identify the sites. Some Indigenous groups keep their own registers. For example, in 2020, there were 2,985 registered Indigenous sites located within the Darkinjung Local Aboriginal Land Council boundaries alone (DALC).

Recent Indigenous heritage protection issues

It is widely recognised that current Indigenous heritage legislation and statutory planning do not provide sufficient protection for Indigenous cultural values in relation to development. This is reflected in the ways in which many development and mining proposals can meet the requirements of the law, while enabling the ongoing destruction of heritage sites.

The independent Samuel review of the EPBC Act (2020) found deficits in the protection and recognition of Indigenous heritage within the Act. These included failure to fully support the rights of Indigenous Australians in decision-making, to meaningfully incorporate Indigenous knowledge and viewpoints in decision-making, or to meet the aspirations of Traditional Owners in managing their lands.

Several high-profile cases have highlighted issues in heritage protection.

Juukan Gorge

In 2020, mining company Rio Tinto destroyed a sacred site to expand an iron ore mine on the land of the Puutu Kunti Kurrama and Pinikura peoples in the Pilbara region of Western Australia (see case study: Juukan Gorge rockshelters – highlighting the poor protections for Indigenous heritage under current Australian Indigenous heritage legislation). Rio Tinto’s action was legal under the Aboriginal Heritage Act 1972 (WA). An inquiry was conducted to examine the heritage law framework, with the report, Never again, attributing the destruction in part to a failure of the Western Australian Act, and highlighting the shortcomings of the EPBC Act and Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). In September 2020, the Minister for the Environment and the Minister for Indigenous Australians co-convened a ministerial roundtable with state and territory ministers responsible for cultural heritage, which agreed to lift the standard of Indigenous heritage protections in partnership with Indigenous Australians (DAWE 2020b).

The Indigenous chapter has more information on mining and its effects on Indigenous communities and Country (see the Indigenous chapter).

Liverpool plains

In 2020, Gomeroi Traditional Owners were unsuccessful in their bid to protect cultural sites from being destroyed for the Shenhua Watermark coalmine in northern New South Wales. The Australian Government minister denied an application by the Gomeroi Traditional Custodians, seeking a declaration under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to protect significant areas of Aboriginal cultural sites on the Liverpool Plains of New South Wales. The sites include grinding groove sites, scarred trees and significant gendered ceremonial corridors.

The minister considered that the expected social and economic benefits of the Shenhua Watermark coalmine to the local community outweighed the impacts on the applicants as a result of the likely destruction of parts of their heritage (Federal Court of Australia 2020).

This case highlights the powerlessness of Traditional Owner groups where concerns for known Indigenous heritage can be overridden if there is ‘potential’ economic and social benefit. Although the New South Wales Government has stated that Indigenous heritage in the area will now be protected, the Gomeroi people continue to have no enforceable rights to ensure protections (Federal Court of Australia 2020).

Lake Torrens

In South Australia, under the Aboriginal Heritage Act 1988 (SA), the premier authorised a minerals exploration company Kelaray (Argonaut Resources) to drill Lake Torrens in central South Australia, targeting iron oxide, copper and gold. Lake Torrens is the second largest salt lake in Australia and is acknowledged as an Indigenous site of significance, recorded on the South Australian Government’s central archives. However, s. 23 of the Act allows the minister to approve actions that may ‘damage, disturb or interfere’ with Indigenous sites (Government of South Australia 1988). This is similar to much state-level Indigenous heritage legislation.

On 6 July 2021, the Kokatha Aboriginal Corporation made applications to the Australian Minister for the Environment to protect Lake Torrens from exploratory drilling by Kelaray under ss. 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

Wahluu/Mount Panorama

Wiradjuri peoples have identified Wahluu/Mount Panorama as a sacred site with great importance to songlines and other aspects of Wiradjuri culture. Despite this, a go-kart track was planned for the site (Gorman 2021). Construction was halted at the last minute when the Australian Minister for the Environment signed a temporary declaration of protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Gorman 2021). In April 2021, the Australian Minister for the Environment made a declaration to protect the site for 10 years. The declaration of the Wahluu/Mount Panorama site as protected under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was made in May 2021. Despite the increase in protection applications, the average time for making declarations once notice of an application has been made appears to be approximately 2 years.

Western Tasmania

In 2014–16, the Tasmanian Aboriginal Centre took legal action against the Tasmanian Government to prevent the reopening 4WD tracks in the Western Tasmania Aboriginal Cultural Landscape within Takayna/Tarkine (EDO 2018). The tracks were originally closed in 2012 due to negative impacts on Aboriginal cultural heritage. In 2017, the Tasmanian Government proposed to lay rubber matting over middens and other Indigenous heritage sites along the Tarkine coast to allow 4WD access. However, a cultural assessment of the plan (required under the EPBC Act) found that the mitigations proposed would not be effective in mitigating damage to Indigenous heritage values. In 2021, the Tasmanian Government announced that it was no longer seeking to reopen the tracks (Petrusma 2021).

Awabakal Butterfly Cave

The Awabakal Butterfly Cave, West Wallsend (near Newcastle, New South Wales), is a sacred Awabakal women’s site that has a long history of use for cultural, spiritual and educational activities that continue today. In 2013, the cave and a boundary of 20 metres around its centre was declared an Aboriginal Place under the National Parks and Wildlife Act 1974 (NSW), but, in 2017, the site came under threat from a proposed nearby housing development by the Roche Group (Crivellaro 2020).

The Awabakal community applied for the protection of the site under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), which led to the cultural significance of the cave being recognised with a Declaration under the Act in 2019. The cave was declared a significant Aboriginal area that is to be preserved and protected from injury and desecration (Australian Government 2019c).(Australian Government 2019c) In 2020, a group of Aboriginal women appealed to the Australian Minister for the Environment to enforce the legal protection, because plans lodged with Lake Macquarie City Council included provision for roads to be built immediately adjacent to the declared area. According to the women, this would restrict access to the site and make the site more visible, which would impact cultural use (EDO 2020).

The issue is not resolved, with lack of agreement on the broader cultural landscape and the area subject to the declaration significantly reduced. The development has been amended so its boundaries now lie just outside the declared area, which excludes the traditional journey path. Breach of the declaration would result in fines of up to $111,000 for the developer, but the Awabakal women have expressed concern that such penalties would be insignificant as a deterrent (Joint Standing Committee on Northern Australia 2021:153).