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Australian states and territories have primary responsibility for the protection of indigenous heritage. Legislation at the federal level applies to areas of national significance and to the export of certain objects from Australia. It also provides backstop protection for indigenous heritage areas and objects where state and territory processes have been exhausted. Federal native title legislation may also provide an avenue for indigenous groups to protect their cultural heritage.

 State and territory legislation contains protections for both indigenous heritage areas and objects, which may be defined to include human remains. The different laws may include offenses for harming or removing indigenous cultural heritage, processes for registering areas and objects, powers to issue stop work orders, and processes for issuing permits to conduct work that may affect cultural heritage. Each state and territory has developed mechanisms for consulting or otherwise involving indigenous people in the relevant processes. Procedures to be followed on the discovery of human remains generally involve contacting the police and/or relevant heritage agencies, a requirement to stop work, and involvement of local indigenous people in determining what should happen with the remains.

The legislation related to protecting indigenous heritage has been the subject of reforms in the past three to four decades, with some jurisdictions currently considering changes that seek to give indigenous people greater control in the management of their own cultural heritage. The various reforms can be seen in the context of shifts in the relationships between indigenous people and Australian governments. Historically, this relationship involved “protectionist” policies and assimilation, including the establishment of reserve areas and the taking of indigenous children by governments during the early to mid-twentieth century. There were later shifts to recognize certain land rights, policies related to self-determination, and a more recent focus on reconciliation. This has included apologies, a focus on partnership in the context of environmental and heritage protection, and greater involvement of indigenous people in decisions that affect them. However, the overall effectiveness of indigenous heritage protections remains affected by inconsistencies in legislation across the country.

I. Legislative and Policy Framework

The Commonwealth (i.e., federal) Department of the Environment and Energy states that

[g]enerally Australia’s state and territory governments are responsible for the protection of Australia’s Indigenous heritage places. All states and territories have laws that protect various types of Indigenous heritage.

The Commonwealth is responsible for protecting Indigenous heritage places that are nationally or internationally significant, or that are situated on land that is owned or managed by the Commonwealth. This protection operates under the Environment Protection and Biodiversity Conservation Act 1999.[1]

Other relevant Commonwealth laws include the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) and the Protection of Movable Cultural Heritage Act 1986 (Cth). Laws related to the recognition of Aboriginal land rights and native title include the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and the Native Title Act 1993 (Cth). There are multiple state and territory laws that are relevant to the protection of Aboriginal sacred sites, artifacts, and human remains, as outlined in this report.

The Commonwealth government published the Australian Heritage Strategy in December 2015.[2] This document sets out a ten-year framework to address national priorities and reach desired outcomes in relation to heritage places. The outcomes are “national leadership,” “strong partnerships,” and “engaged communities.” These are underpinned by three sets of objectives, which are supported by a series of actions.[3] The intention is to review the strategy after five years.

Objective 9 of the Strategy relates to focusing protection efforts on indigenous heritage. The associated actions include promoting “a consistent approach to the recognition, protection and management of Indigenous heritage sites across all levels of government and other organisations.”[4] The commentary to the objective states that the 2011 Australia State of the Environment Report found that

assessing outcomes for Australia’s Indigenous heritage is hampered by the lack of national coordinated management approaches, a deficiency of comparable data, and the absence of formal monitoring and evaluation programmes. Overall, the report found that increasing regulation has not reduced the rate of destruction of significant Indigenous heritage sites. At the same time, the Productivity Commission has recommended various ways to reduce regulatory overlaps in the range of Commonwealth and state laws that protect Indigenous heritage sites.[5]

The Strategy also notes that

[l]egislation for the management of heritage places across Australia is sometimes complex and can be inconsistent. Legislative reforms, particularly in the area of Indigenous heritage, are being pursued by a number of state and territory governments.[6]

The Strategy also refers to the National Heritage Protocol, which was agreed by Commonwealth, state, and territory governments in 2004. According to the Strategy, the Protocol “outlines the arrangements whereby the Commonwealth, state and territory systems for the protection of cultural, natural and Indigenous heritage are coordinated.”[7]

In 2002, the Australian Heritage Commission (which was replaced by the Australian Heritage Council in 2004), a body established by the federal government to provide advice on heritage matters, published a document titled Ask First: A Guide to Respecting Indigenous Heritage Places and Values.[8] The 2015 Strategy includes a proposed action to publish and promote a new edition of this publication.[9] No information was located regarding progress with this action.

Nongovernmental heritage organizations have also produced charters and guidance documents related to heritage protection that are utilized by government regulators and decision makers throughout the country. In particular, the Burra Charter[10] was first developed in 1979 and has been updated periodically “to reflect developing understanding of the theory and practice of cultural heritage management.”[11]

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II. Commonwealth Legislation

A. Protection of Indigenous Heritage Sites and Objects

1. Environment Protection and Biodiversity Conservation Act 1999 (Cth)

The Environment Protection and Biodiversity Conservation Act 1999 (Cth)[12] (EPBC Act)

establishes the National Heritage List, which includes natural, Indigenous and historic places that are of outstanding heritage value to the nation. Under the EPBC Act there are penalties for anyone who takes an action that has or will have a significant impact on the Indigenous heritage values of a place that is recognised in the National Heritage List.

The Act also establishes the Commonwealth Heritage List, which includes places on Commonwealth lands and waters or under Australian Government control that have Indigenous heritage significance.

In addition the Act protects heritage on Commonwealth land and from actions undertaken by the Commonwealth.[13]

The Australian Heritage Council, which was established by the Australian Heritage Council Act 2003 (Cth),[14] “assesses nominations for the National Heritage List and the Commonwealth Heritage List and makes recommendations to the Minister for the Environment. The final decision on listing is made by the Minister.”[15] The Council includes indigenous heritage experts and, when it considers that a nominated place may have indigenous heritage values, “the Council must endeavour to identify the Indigenous people with rights and interests in the place. It must then invite their views on whether the place should be included in the list. The Minister takes those submissions into account when making a decision about listing the place.”[16] In addition, the Indigenous Advisory Council, established under the EPBC Act, “advises the Minister on the operation of the EPBC Act taking into account their knowledge of the land, conservation and use of biodiversity.”[17]

Once an area with indigenous heritage significance has been added to either the National or Commonwealth Heritage lists, indigenous Australians “are involved in developing management plans.”[18] Where places on the National Heritage List are on indigenous land, these “can be managed through conservation agreements, which operate in the same way as Indigenous Protected Areas”[19] (see below, Part II(A)(5), for information on such areas).

2. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

The purpose of the ATSIHP Act[20] “was to address a gap in state laws and to encourage states to improve or enact legislation to protect traditional Aboriginal sites and objects.”[21] The Department of the Environment and Energy states that the Act “enables the Australian Government to respond to requests to protect important Indigenous areas and objects that are under threat, if it appears that state or territory laws have not provided effective protection.”[22] It further states that

[t]he Australian Government can make special orders, called declarations, to protect traditional areas and objects of particular significance to Aboriginals in accordance with Aboriginal tradition from threats of injury or desecration. However the government cannot make a declaration unless an Indigenous person (or a person representing an Indigenous person) has requested it. The power to make declarations is meant to be used as a last resort, after the relevant processes of the state or territory have been exhausted.[23]

The government has developed reform proposals with respect to the ATSHIP Act, but these have not yet been introduced.[24] The Australian Heritage Strategy notes that

[t]hree decades on, and despite significant changes in the Indigenous heritage protection laws of all jurisdictions, including passage of the Native Title Act 1993 and the EPBC Act, the ATSIHP Act has not been updated to reflect the improvements in the legislative protections for Indigenous heritage. Any changes to the ATSHIP Act would require the support of Indigenous stakeholders.[25]

3. Protection of Movable Cultural Heritage Act 1986 (Cth)

The Protection of Movable Cultural Heritage Act 1986 (Cth)[26] is administered by the Department of Communication and the Arts.[27] It establishes the National Cultural Heritage Control List,[28] which includes two classes of Australian protected objects: Class A objects that cannot be exported from Australia and Class B objects that can be exported only after an export permit has been granted.[29] Class A objects, which are listed in the Protection of Movable Cultural Heritage Regulations 2018 (Cth), include the following Aboriginal and Torres Strait Islander material:

  • sacred and secret ritual objects
  • bark and log coffins used as traditional burial objects
  • human remains
  • rock art
  • dendroglyphs (carved trees)[30]

The Act was the subject of a review conducted in 2015, which resulted in proposals for a new regulatory model based on various principles, including “adherence to principles of Aboriginal and Torres Strait Islander decision-making” and “a distinction between Ancestral remains and objects.”[31] No legislative amendments have been enacted following the review, although a bill to modernize the Act was listed by the government as one of the items to be introduced in 2018.[32]

4. Native Title Act 1993 (Cth)

According to a native title lawyer, the provisions and processes of the Native Title Act 1993 (Cth)[33] may interact with Commonwealth, state, and territory legislation regarding indigenous heritage protection, and also provides for the right to protect places that are culturally significant:

The Native Title Act provides a framework for recognising and protecting the traditional rights and interests of Aboriginal and Torres Strait Islander people on areas of land and waters where native title has not been extinguished. This can include vacant Crown land and reserves, forests and parks, as well as seas and inland waters.

Most significantly, the Native Title Act provides for determinations of native title by the Federal Court that recognise the continuing native title rights and interests of Aboriginal and Torres Strait Islander people. As noted above, this may include a right to protect places and areas that are important under traditional law and custom.

It may be possible to protect these places and areas in some circumstances by applying to a Court for a legal remedy such as an injunction to prevent an activity that would damage them. Protection of this nature may be available in the absence of, or in addition to, protection available under other State, Territory or Commonwealth cultural heritage laws.[34]

The Act also contains provisions that require notification, consultation, and negotiation that apply to ensure that the relevant indigenous corporate entity is “made aware of proposed activities that may have an impact on cultural heritage.”[35]  It also “makes provision for native title holders to reach a number of different types of agreements with governments and proponents who want to carry out future act activities.”[36]  However, the cultural heritage protection available under the Act “is confined to areas of land and waters where native title may exist or has been determined to exist” and, even where such title has been determined to exist, “native title rights and interests do not provide absolute protection or a right of veto over development activities.”[37]

5. Indigenous Protected Areas

Indigenous Protected Areas (IPAs) are part of Australia’s National Reserve System, “the network of formally recognised parks, reserves and protected areas across Australia.”[38] IPAs, which have been part of the reserve program since 1997, are “land and sea country owned or managed by Indigenous groups, which are voluntarily managed as a protected area for biodiversity conservation through an agreement with the Australian Government.”[39] In addition, to conservation, IPAs are intended to “protect cultural heritage into the future, and provide employment, education and training opportunities for Indigenous people in remote areas.”[40] There are currently seventy-five IPAs, making up about 45% of the National Reserve System’s total area.

B. Protection of Human Remains

The ATSIHP Act contains specific provisions regarding discovery of Aboriginal remains and also includes such remains in the definition of “significant Aboriginal objects” to which additional provisions apply.[41] The provisions specifically related to Aboriginal remains state as follows:

20  Discovery of Aboriginal remains
(1)  A person who discovers anything that he or she has reasonable grounds to suspect to be Aboriginal remains shall report his or her discovery to the Minister, giving particulars of the remains and of their location.
(2)   Where the Minister receives a report made under subsection (1) and he or she is satisfied that the report relates to Aboriginal remains, he or she shall take reasonable steps to consult with any Aboriginals that he or she considers may have an interest in the remains, with a view to determining the proper action to be taken in relation to the remains.

21  Disposal of Aboriginal remains
(1)  Where Aboriginal remains are delivered to the Minister, whether in pursuance of a declaration made under section 12 or otherwise, he or she shall:

(a)   return the remains to an Aboriginal or Aboriginals entitled to, and willing to accept, possession, custody or control of the remains in accordance with Aboriginal tradition;
(b)  otherwise deal with the remains in accordance with any reasonable directions of an Aboriginal or Aboriginals referred to in paragraph (a); or
(c)  if there is or are no such Aboriginal or Aboriginals—transfer the remains to a prescribed authority for safekeeping.

(2)  Nothing in this section shall be taken to derogate from the right of any Aboriginal or Aboriginals accepting possession, custody or control of any Aboriginal remains pursuant to this section to deal with the remains in accordance with Aboriginal tradition.[42]

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III. State and Territory Legislation

Each Australian jurisdiction has laws and processes in place to protect places and objects that are of significance to the cultural heritage of indigenous Australians. Only two jurisdictions, the Australian Capital Territory and New South Wales, do not have separate legislation related to Aboriginal heritage protection. The laws include offenses for interfering with protected places and objects, as well as processes for the issuing of permits to do work in such areas, subject to conditions. Each jurisdiction has established mechanisms for consulting with, or otherwise involving, indigenous people in relation to making decisions with respect to such places and objects.

The Department of Environment and Energy states that

[m]ost of Australia’s states and territories maintain registers of Indigenous heritage sites. Developers need to be aware that these registers may not be comprehensive records of all the Indigenous sites that are protected under state and territory laws. Where there is a risk that a planned activity could have adverse impacts on Indigenous heritage it is advisable to contact the state or territory government agency that is responsible for protecting Indigenous heritage and maintaining the register.[43]

Some state and territory legislation includes human remains within the overall system for protecting objects. In addition, the legislative framework applicable to the discovery of indigenous human remains may involve coronial and public health legislation. Guidance provided by government entities with respect to ancestral remains is included below.

A. Australian Capital Territory (ACT)

1. Protection of Indigenous Heritage Sites and Objects

ACT Heritage states that, under the Heritage Act 2004 (ACT),[44]

[u]nlike natural and historic heritage places and objects which must be nominated, provisionally registered or registered for the Act to have effect, all Aboriginal places and objects in the ACT are protected under the Act and are recorded in a centralised database maintained by ACT Heritage.

All Aboriginal places and objects have cultural value for Aboriginal people as part of their history and heritage. Some Aboriginal places and objects have cultural and/or scientific/archaeological value which is beyond the ordinary and may also meet one or more of the heritage significance criteria under the Act to warrant entry to the ACT Heritage Register.

There are specific provisions in the Act which require a person to report the discovery of an Aboriginal place or object to the Heritage Council within five working days. There are also provisions and penalties that apply if a person damages any Aboriginal place or object in the ACT.

The Act also includes provisions for the declaration of Representative Aboriginal Organisations (RAOs). Under the Act, the Council is responsible for consulting with RAOs on a range of matters relating to Aboriginal places and objects in the ACT.[45]

The Heritage Act 2004 (ACT) defines “Aboriginal object” as “an object associated with Aboriginal people because of Aboriginal tradition.”[46] As indicated above, it requires that any discovery of an Aboriginal object be reported to the ACT Heritage Council.[47] The Council must then consult with the relevant RAOs and decide whether the object should be registered.[48]

Each Aboriginal object owned in the territory must be kept in a place that has been declared as a repository for such objects.[49] If the object is located on territory land and no other person holds a legal interest in the object, and the relevant Minister has not surrendered the territory’s legal interest, the Aboriginal object is deemed to be owned by the territory government.[50]

2. Procedures on Discovery of Human Remains

No dedicated governmental guidance was located regarding procedures upon the discovery of Aboriginal remains in the ACT. However, some documents related to development activities contain information on the processes that should be followed to ensure compliance with the relevant provisions. For example, a 2014 Aboriginal cultural heritage assessment produced with respect to the ACT government’s construction of an access road included protocols to be followed in the event of unanticipated discoveries of Aboriginal archeological material, including human remains.[51] It states that, in the event suspected human remains are encountered, all ground surface work in the relevant area should cease immediately, expert opinion should be sought, and the following entities should be notified immediately: the local police; ACT Heritage; representatives from the RAOs; and the project archeologist. If the remains are determined to be of an Aboriginal person who died more than one hundred years ago, the following steps are to be followed:

i.     Ascertain the requirements of the local RAOs, the ACT Heritage Council, the development proponent, and the project archaeologist;

ii.   Based on the above, determine and conduct an appropriate course of action. Possible strategies could include one or more of the following:

1.      Avoiding further disturbance to the find and conserving the remains in situ, (this option may require relocating the development and this may not be possible in some contexts);

2.      Conducting (or continuing) archaeological salvage of the finds following receipt of any required statutory approvals;

3.      Scientific description (including excavation where necessary), and possibly also analysis of the remains prior to reburial;

4.      Recovering samples for dating and other analyses; and/or

5.      Subsequent reburial at another place and in an appropriate manner determined by the RAOs and the Heritage Council.[52]

B. New South Wales (NSW)

1. Protection of Indigenous Heritage Sites and Objects

The National Parks and Wildlife Act 1974 (NSW) (NPW Act),[53] which is administered by the Office of Environment and Heritage (OEH), “is the primary legislation for the protection of some aspects of Aboriginal cultural heritage in New South Wales.”[54] It provides “specific protection for Aboriginal objects and declared Aboriginal places by establishing offences of harm.”[55] The Act includes defenses and exemptions to such offenses, including a defense that the harm was carried out under an Aboriginal Heritage Impact Permit (AHIP).[56]

Under the Act, “[t]he Minister for the Environment can declare an area to be an ‘Aboriginal place’ if the Minister believes that the place is or was of special significance to Aboriginal culture. An area can have spiritual, natural resource usage, historical, social, educational or other type of significance.[57]

The OEH maintains the Aboriginal Heritage Information System, which lists notified Aboriginal objects and declared Aboriginal places in NSW.[58] The NPW Act also establishes the Aboriginal Cultural Heritage Advisory Committee, which is to “advise the Minister and the Chief Executive on any matter relating to the identification, assessment and management of Aboriginal cultural heritage, including providing strategic advice on the plan of management and the heritage impact permit process, whether or not the matter has been referred to the Committee by the Minister or the Chief Executive.”[59]

The NPW Act provides for the issuance of “stop work” orders in relation to an action that is likely to significantly affect an Aboriginal object or place as well as interim protection orders to be made in relation to an area of land with cultural significance.[60]

Internal guidance produced by the OEH in 2011 states that it recognizes and will act on the principles that Aboriginal people

  • are the primary source of information about the value of their heritage and how this is best protected and conserved
  • must have an active role in any Aboriginal cultural heritage planning process
  • must have early input into the assessment of the cultural significance of their heritage and its management so they can continue to fulfill their obligations towards their heritage
  • must control the way in which cultural knowledge and other information relating specifically to their heritage is used, as this may be an integral aspect of its heritage value.[61]

The guidance also includes encouraging “early and ongoing engagement” between clients and Aboriginal people and ensuring consultation has been appropriate.[62] Additional guidance has been produced in relation to requirements for consulting Aboriginal people about cultural heritage in the context of applications for AHIPs.[63] Another guide relates to the process for investigating and assessing Aboriginal cultural heritage and producing a report in connection with such applications.[64]

The NPW Act provisions related to Aboriginal objects include an offense of harming or desecrating an Aboriginal object or moving the object “from the land on which it has been situated.”[65] People who find an Aboriginal artifact are advised to leave it where it is and immediately report it to the OEH.[66]

Certain Aboriginal objects are deemed to be government property,[67] and the government is responsible for the proper care, preservation, and protection of Aboriginal objects.[68] Objects may be transferred to an Aboriginal owner.[69] With regard to such transfer, the Office of Environment and Heritage states as follows:

Many Aboriginal communities wish to have care of Aboriginal objects which have been excavated, disturbed or moved by development activities, erosion or other processes.

The NPW Act allows the transfer of Aboriginal objects to an Aboriginal person or Aboriginal organisation for safekeeping. The person or organisation must enter into a care agreement with OEH.

A care agreement is a document that sets out the obligations of OEH and the Aboriginal person or Aboriginal organisation for the safekeeping of the transferred Aboriginal object(s). The Aboriginal person or organisation does not become the owner of the Aboriginal objects.[70]

2. Procedures on Discovery of Human Remains

The ancestral remains of Aboriginal people are included in the definition of “Aboriginal objects” in the NPW Act.[71] The OEH guidance with respect to such objects therefore also covers Aboriginal remains. Other agencies have provided specific guidance related to the discovery of skeletal remains in the context of government development work. For example, the procedures of NSW Roads and Maritime Services (RMS) regarding unexpected heritage items includes guidance on the different steps to be taken upon the discovery of such remains, depending on whether they are Aboriginal or non-Aboriginal, and less or more than one hundred years old. This includes stopping work in the vicinity of the find; consulting with a qualified forensic or physical anthropologist to determine the nature of the remains; contacting the police; and, if the human bones are archeological in nature (more than one hundred years old) and are likely to be Aboriginal remains, immediately notifying the OEH and the RMS Aboriginal Cultural Heritage Advisor, who must then contact the relevant Aboriginal community stakeholders.[72]

3. Draft Aboriginal Cultural Heritage Bill 2018

In February 2018, the NSW government released a draft bill that proposes “a new system for managing and conserving Aboriginal cultural heritage in New South Wales.”[73] The Office of Environment and Heritage states that

[t]he proposed new system offers a transformative, contemporary and respectful vision for the management of Aboriginal cultural heritage in New South Wales. The aims of the proposed new system are:

a. broader recognition of Aboriginal cultural heritage values – by recognising in law a more respectful and contemporary understanding of Aboriginal cultural heritage

b. decision making by Aboriginal people – by creating a new governance structures that gives Aboriginal people legal responsibility for and authority over Aboriginal cultural heritage

c. better information management – improving outcomes for Aboriginal cultural heritage through new information management systems and processes that are overseen by Aboriginal people

d. improved protection, management and conservation of Aboriginal cultural heritage – by providing broader protection and more strategic conservation of Aboriginal cultural heritage values

e. greater confidence in the regulatory system – by providing better upfront information to support assessments, clearer consultation processes and timeframes, and regulatory tools that can adapt to different types of projects.[74]

Further consultation is currently being carried out on the proposed reforms.[75]

C. Northern Territory

1. Protection of Indigenous Heritage Sites and Objects

a. Northern Territory Aboriginal Sacred Sites Act 1989 (NT)

The Northern Territory Aboriginal Sacred Sites Act 1989 (NT)[76] establishes the Aboriginal Areas Protection Authority (AAPA).[77] The AAPA’s functions include “[r]esponding to requests for sacred site protection from Aboriginal custodians, including the recording and documenting of sacred site information, registration of sacred sites, the provision of related protection measures and the keeping of confidential sacred site records.”[78] It maintains the Register of Sacred Sites and responds to applications for Authority Certificates, which set out the conditions for using or carrying out works in areas that contain, or are in the vicinity of, sacred sites.[79]

All sacred sites are protected by the Act, regardless of whether or not they have been recorded or registered.[80] The Act contains offenses related to entry onto, work on, and the desecration of sacred sites.[81]

A “sacred site” is defined in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 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.”[82] This Act gives the Northern Territory Legislative Assembly the power to make laws

providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and, in particular, laws regulating or authorizing the entry of persons on those sites, but so that any such laws shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected.[83]

b. Heritage Act 2011 (NT)

The Heritage Act 2011 (NT) provides automatic protection for Aboriginal and Macassan (fishermen from the Sulawesi region of Indonesia who visited parts of northern Australia) archeological places and objects, which are declared by the Act to be heritage places and objects.[84] The AAPA explains that

[a]rchaeological places may include artefact scatters, shell middens, earth mounds, quarries, stone arrangements, petroglyphs, rock shelters and rock art. When these sites have an Aboriginal tradition associated with them as defined under the Aboriginal Land Rights Act (1979) [sic], they are considered sacred sites for the purposes of the Sacred Sites Act.[85]

The Heritage Act requires approval for carrying out work on archeological places or objects, with the decision maker to obtain advice from the AAPA if the place or object is, or is in, a sacred site under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).[86] The Act also includes powers to issue stop work orders and repair orders.[87]

The Heritage Act defines Aboriginal or Macassan archeological objects as relics that relate to past human occupation by Aboriginal or Macassan people and that are either in an archeological place or stored in accordance with Aboriginal tradition.[88] A “relic” includes both artifacts and human remains.[89] It is an offense to cause damage to such an object.[90] It is also an offense to fail to report the discovery of an object to the relevant government agency.[91]

The Northern Territory government states that “[t]he Heritage Branch has the final decision about what happens to artefacts [sic]. There is a preference for them to be handed over to traditional owners.”[92] Under the Act, Aboriginal or Macassan archeological objects can only be removed from the territory with the consent of the person or group who, according to Aboriginal tradition, have a right to possess it.[93]

2. Procedures on Discovery of Human Remains

The AAPA states that

Aboriginal skeletal remains are considered Aboriginal archaeological places and objects under the Heritage Act.  When skeletal remains are found in the Northern Territory, it is the police who should be contacted in the first instance. If they determine that the remains are not of a suspicious nature and may be of traditional Aboriginal origin, they will contact the Heritage Branch responsible for administering the Heritage Act. The Heritage Branch routinely works with the Authority in order to consult the relevant custodians, and be advised of the location of sacred sites in the vicinity of the burial area.

Under the Heritage Act it is an offence to interfere with archaeological places and objects without authorization under that Act.

If you do encounter skeletal remains, it is your responsibility by law to stop any work that is occurring and report such disturbance to the police immediately. If you have reason to believe the remains are those of an Aboriginal burial, this should be reported to the Heritage Branch.[94]

D. Queensland

1. Protection of Indigenous Heritage Sites and Objects

The Aboriginal Cultural Heritage Act 2003 (Qld)[95] and Torres Strait Islander Cultural Heritage Act 2003 (Qld)[96] are nearly identical laws that are administered by the Cultural Heritage Unit of the Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP).[97] DATSIP states that the Acts

  • provide blanket protection of areas and objects of traditional, customary, and archaeological significance[,]
  • recognise the key role of Traditional Owners in cultural heritage matters[, and]
  • establish practical and flexible processes for dealing with cultural heritage in a timely manner.[98]

Under the Acts, Aboriginal and Torres Strait Islander cultural heritage includes significant areas, significant objects, and evidence of occupation in an area.[99] The Acts require that “[a] person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm” Aboriginal or Torres Strait Islander cultural heritage.[100] It is an offense to harm any aspect of Aboriginal or Torres Strait Islander cultural heritage or to excavate, relocate, take away, or possess such heritage, other than in accordance with the Acts.[101] Protection measures available under the Acts include the ability to issue stop work orders to require a person to cease, or not start, any activity that will harm cultural heritage or have a significant impact on the cultural heritage value of such heritage.[102]

The Acts provide for the registration of indigenous cultural heritage bodies[103] and the establishment of cultural heritage databases and registers,[104] and contain requirements related to carrying out cultural heritage studies, with the findings of such studies included in the registers based on a decision by the relevant agency.[105] Cultural heritage plans may be required to be developed and approved for a project.[106]

The Acts also contain provisions regarding ownership of significant objects.[107] A “significant Aboriginal object”[108] is “an object of particular significance to Aboriginal people because of either or both of the following—(a) Aboriginal tradition; (b) the history, including contemporary history, of an Aboriginal party for an area.”[109] Similar provisions are contained in the Torres Strait Islander heritage legislation.[110] There is an intent that,

as far as practicable, Aboriginal cultural heritage should be owned and protected by Aboriginal people with traditional or familial links to the cultural heritage if it is comprised of any of the following—
(a) Aboriginal human remains; (b) secret or sacred objects;
(c) Aboriginal cultural heritage lawfully taken away from an area.[111]

2. Procedures on Discovery of Human Remains

The two Acts contain specific provisions regarding the ownership, custody, and possession of Aboriginal and Torres Strait Islander human remains.[112] A person who has knowledge of such remains must report their existence and location to DATSIP.[113] DATSIP has published a guidance document on the discovery, handling, and management of human remains.[114] It explains the legislative framework, which includes the following:

  • Criminal Code Act 1899 (Qld): Provides that it is an offense to improperly or indecently interfere with a human body or human remains.
  • Coroners Act 2003 (Qld): Provides that, when human remains are located, the person finding the remains must report them to a police officer or the Coroner. If the Coroner’s investigation shows that the body is Aboriginal or Torres Strait Islander traditional burial remains, the investigation must stop and, if the remains were removed from the area where they were found, the Coroner must release the remains to the Minister responsible for administering the two indigenous heritage statutes.
  • Aboriginal Cultural Heritage Act 2003 (Qld) and Torres Strait Islander Cultural Heritage Act 2003 (Qld): Under these laws, “Aboriginal or Torres Strait Islander people who have a traditional or familial link with Aboriginal or Torres Strait Islander human remains are the owners of those remains, regardless of who may have owned them before commencement of the Acts.”[115]

In terms of procedures on discovery of human remains, the guidance document states that,

[i]n all cases when human remains are located it is important to remember:

· >The discovery of any human remains must as soon as possible be reported to the police.

· It is an offence to interfere with human remains, whether buried or not.

The Police or Coroner must be advised of the presence of any human remains. An appropriate officer will then establish the area as a potential crime scene.

Police will undertake appropriate scientific or other procedures to assist the Coroner in making an appropriate determination about the remains.

If the remains are thought to be neither Aboriginal nor Torres Strait Islander, related to criminal activity or are of doubtful determination, the Police may remove the remains for further analysis.

If however the remains are determined to be ancestral remains without the need for removal, the relevant Traditional Owners of the remains will be responsible for their management.

In cases where remains are removed by Police and subsequently determined by the Coroner to be of Aboriginal or Torres Strait Islander origin, the remains will be released to the Minister responsible for administering the Acts.

The Department of Aboriginal and Torres Strait Islander Partnerships is then responsible for coordinating the return of the remains to the relevant Traditional Owners.[116]

E. South Australia

1. Protection of Indigenous Heritage Sites and Objects

The Aboriginal Heritage Act 1988 (SA)[117] protects “[s]ites of significance according to Aboriginal tradition and sites significant to Aboriginal archaeology, anthropology and history.”[118] It establishes the State Aboriginal Heritage Committee, which provides advice to the state premier on a range of matters, including “measures that should be taken for the protection or preservation of Aboriginal sites, objects or remains” and Aboriginal heritage agreements.[119] The Act also requires the maintenance of three registers: the Register of Recognised Aboriginal Representative Bodies (RARBs), the Register of Aboriginal Sites and Objects, and the Register of Agreements.[120]

Under the Act, it is “an offence to damage, disturb or interfere with an Aboriginal site, object or remains without an authorisation from the Premier, as the Minister responsible for Aboriginal Affairs and Reconciliation.”[121] The Act provides for “local heritage agreements” to be made between a land use proponent and an RARB and then approved by the Premier. These agreements deal “with the impact of the proponent’s activities on any Aboriginal heritage in the area covered by the agreement.”[122] Once an agreement is approved, the Premier “must grant an authorisation to the proponent to excavate the land or to damage, disturb or interfere with any sites, objects or the remains on the condition that the proponent complies with the agreement.”[123] In addition, “[a] proponent may request an authorisation to impact heritage without a local heritage agreement, in which case the request will be processed in accordance with the consultation provisions in the Act and the Premier will decide whether to grant the authorisation.”[124]

The Act requires that where the owner or occupier of private land discovers an Aboriginal object on that land, he/she must report the discovery to the relevant Minister.[125] The Minister may direct the person to “take such immediate action for the protection or preservation of the remains as the Minister considers appropriate.”[126] As noted above, it is an offense to damage, interfere with, or remove any Aboriginal object.[127]

2. Procedures on Discovery of Human Remains

Guidance produced by the South Australia government states that persons who find skeletal remains must stop any work that may impact them, not disturb them further, and call the police. The police will determine whether the remains are Aboriginal ancestral remains. If so, Aboriginal Affairs and Reconciliation (part of the Department of the Premier and Cabinet) must be contacted.[128] Additional guidance information states as follows:

The Discovery Protocol for Ancestral Remains has been developed in consultation with the State Aboriginal Heritage Committee and should be implemented immediately whenever skeletal remains are discovered. The Protocol is based on proponents’ responsibilities under the Coroner’s Act 2003 and Aboriginal peoples’ rights under the Aboriginal Heritage Act 1988.

In summary, in the event of discovery of bones which may be human, all works in the discovery area should immediately stop and the discovery must be reported to the South Australian Police (SAPOL). If SAPOL confirms the discovery as Aboriginal ancestral remains, the proponent and RARB, or where there is no appointed RARB the relevant local Aboriginal parties, may reach agreement to manage the discovery; including recovery, reburial and any associated cultural ceremony.[129]

F. Tasmania

1. Protection of Indigenous Heritage Sites and Objects

The Aboriginal Heritage Act 1975 (Tas)[130] enables the relevant government minister to declare an area of land to be a protected site if he or she is satisfied that there is a “relic” on that site.[131] It establishes statutory guidelines “which specify the actions required by a person to establish a defence” to offenses under the Act.[132]

Aboriginal Heritage Tasmania, which administers the Act, states that the Act

applies to ‘relics’ created by Aboriginal people that are of significance to the Aboriginal people of Tasmania. This includes Aboriginal traditions, knowledge, observance, custom or beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people. Significance may relate to the Aboriginal tradition, contemporary history of Aboriginal people or the anthropological, archaeological or scientific history of Aboriginal people. The Act states that ‘no person shall destroy, damage, deface, conceal, or otherwise interfere with a relic.’

Two areas of land in Tasmania are declared ‘Protected Archaeological Sites’ under the Act.[133]

Amendments to the Act that commenced in 2017 established a new Aboriginal Heritage Council and introduced “new penalties for unlawful interference or damage to an Aboriginal relic.”[134] The new Council “provides advice and recommendations to the Director of National Parks and Wildlife, the Minister for Aboriginal Affairs and stakeholders on the protection and management of Aboriginal heritage in Tasmania.”[135]

The Aboriginal Heritage Act requires anyone who finds a “relic” to inform an authorized officer of the find.[136] As indicated above, it is an offense to “destroy, damage, deface, conceal, or otherwise interfere with a relic” or to “remove a relic from the place where it is found or abandoned,” among others, other than in accordance with the Act.[137] The relevant Minister can make orders with respect to the land on which a relic is situated and any relic specified in such an order is considered a protected object, with various provisions in the Act then being applicable to such objects.[138]

Ownership of relics found on government land is vested in the government, and the government can also take ownership of other objects.[139]

2. Procedures on Discovery of Human Remains

Aboriginal Heritage Tasmania sets out procedures upon the discovery of skeletal material in its “Unexpected Discovery Plan,” as follows:

Step 1:
Call the Police immediately. Under no circumstances should the suspected skeletal material be touched or disturbed. The area should be managed as a crime scene. It is a criminal offence to interfere with a crime scene.

Step 2:
Any person who believes they have uncovered skeletal material should notify all employees or contractors working in the immediate area that all earth disturbance works cease immediately.

Step 3:
A temporary ‘no-go’ or buffer zone of at least 50m x 50m should be implemented to protect the suspected skeletal material, where practicable. No unauthorised entry or works will be allowed within this ‘no-go’ zone until the suspected skeletal remains have been assessed by the Police and/or Coroner.

Step 4:
If it is suspected that the skeletal material is Aboriginal, Aboriginal Heritage Tasmania should be notified.

Step 5:
Should the skeletal material be determined to be Aboriginal, the Coroner will contact the Aboriginal organisation approved by the Attorney-General, as per the Coroners Act 1995.[140]

G. Victoria

1. Protection of Indigenous Heritage Sites and Objects

The Aboriginal Heritage Act 2006 (Vic),[141] along with the Aboriginal Heritage Regulations 2018 (Vic),[142]

  • establishes the Victorian Aboriginal Heritage Council;
  • provides for the management of a system of Registered Aboriginal Parties, which is intended to allow for “Aboriginal groups with connections to country to be involved in decision making processes around cultural heritage”;
  • establishes the Aboriginal Cultural Heritage Register;
  • establishes processes related to Cultural Heritage Management Plans and the issuance of permits in order to manage activities that may impact Aboriginal cultural heritage;
  • creates a system of Cultural Heritage Agreements that involve partnerships for the protection and management of Aboriginal cultural heritage; and
  • contains offenses and penalties to prevent harm to Aboriginal cultural heritage.[143]

The Act “provides protection for all Aboriginal places, objects and human remains in Victoria regardless of their inclusion in the Victorian Aboriginal Heritage Register or land tenure.”[144] The Victorian Aboriginal Heritage Council makes decisions on the appointment of Registered Aboriginal Parties and oversees their operations, has roles related to the protection of ancestral remains, and promotes obligations with respect to secret or sacred objects, as well as providing advice to the relevant minister on the protection and management of Aboriginal cultural heritage in Victoria.[145]

The Aboriginal Heritage Act 2006 (Vic) requires that a person who discovers an Aboriginal object on either public or private land must report the discovery to the relevant agency.[146] As noted above, it is an offense to harm Aboriginal cultural heritage, including objects.[147]

2. Procedures on Discovery of Human Remains

The Victorian Aboriginal Heritage Council’s guidelines on reporting Aboriginal ancestral remains state as follows:

Recent discoveries of human remains must be reported to the Coroner, Victorian Institute of Forensic Medicine or a police officer in charge of a police station. . . .

The Coroner will send a Forensic Anthropologist to the site to assess the remains, and will:

· report the remains to us if they’re Aboriginal Ancestral Remains, or

· notify Victoria Police if they’re not Aboriginal Ancestral Remains[148]

The Aboriginal Heritage Act 2006 (Vic) recognizes traditional ownership of ancestral remains.[149] Once the Council has been notified of ancestral remains it must, “after taking reasonable steps to consult with any Aboriginal person or body the Council believes may have an interest in the Aboriginal ancestral remains, determine the appropriate course of action to be taken in relation to the Aboriginal ancestral remains.”[150] The Coroner must transfer custody of ancestral remains to the Council, after which the Council must transfer the remains to any relevant traditional owner, to the Museum Board for safekeeping, or otherwise deal with the remains as it thinks appropriate.[151]

H. Western Australia

1. Protection of Indigenous Heritage Sites and Objects

The Aboriginal Heritage Act 1972 (WA),[152] which is administered by the Department of Planning, Lands and Heritage, “protects all Aboriginal heritage sites in Western Australia, whether or not they are registered with the department.”[153] It also provides protection for Aboriginal objects, including ceremonial objects, pre-colonial material, and post-contact items.[154]

The Act provides for the “declaration of Aboriginal sites that are of outstanding importance to be Protected Areas.”[155] It also provides for the maintenance of a register of Aboriginal sites containing all protected areas, all Aboriginal cultural material, and all other places and objects to which the Act applies.[156]

The Act requires that any person who has knowledge of an Aboriginal object of “sacred, ritual or ceremonial significance,” or other things related to Aboriginal cultural heritage, must report its existence to the Registrar of Aboriginal Sites or to a police officer.[157] It is an offense to damage or remove any object on or under an Aboriginal site without authorization.[158]

The Western Australia government is currently conducting a review of the Aboriginal Heritage Act in order to develop new legislation that

  • promotes the understanding and celebration of Aboriginal cultural heritage through the recognition of significant places and objects[,]
  • provides transparent and easy to understand processes that offer certainty and predictability for stakeholders[, and]
  • provides high standards of protection for significant places and objects, while enabling land use.[159]

2. Procedures on Discovery of Human Remains

The Department of Planning, Lands and Heritage lists the following steps to be taken upon the discovery of an Aboriginal burial site or ancestral remains:

1. Immediately contact the police and the Registrar.
2. If development or other ground disturbing activities are carried out, these activities must cease immediately.
3. The police will investigate the remains as soon as possible. The Registrar will liaise with police to ensure that the minimum amount of disturbance takes place before identification of whether the remains are of Aboriginal origin and not a matter for further police involvement.
4. Upon notification that the remains are of Aboriginal origin and not a matter for further police involvement, the Registrar will seek the immediate involvement of relevant Aboriginal people.
5. The landowner will develop an appropriate action plan for the management of the remains, in consultation with relevant Aboriginal people and the Registrar.
6. The Registrar will ensure that the burial place is recorded and placed on the Register of Aboriginal Sites.
7. The Registrar will ensure that the burial place is reported to the Commonwealth Minister for Indigenous Affairs, in accordance with the legal requirements under the Aboriginal and Torres Strait Islander Protection Act 1984.
8. If the landowner wishes to carry out further development activities on the location the Registrar will provide advice on how to lodge an application to use the land.[160]

The Department further states that the options for dealing with the remains depends on the views of the relevant Aboriginal people, the circumstances of each place, and the nature of any development which is occurring. Options include leaving the remains in situ, reburial in the same place, reburial in a registered cemetery or keeping place, or reburial as close as possible to the original location.[161]

Back to Top

IV. Relationships between Australian Governments and Indigenous Peoples

A. History

The history of the relationship between Australian state and federal governments and Australia’s indigenous peoples (including Aboriginal people and Torres Strait Islanders) has involved policies of “protection,” assimilation, self-determination, and reconciliation.

In the context of “protection,” in the early 1900s state governments began enacting legislation that allowed the forcible removal of indigenous children from their families. These children later came to be referred to as the “stolen generations.”[162] The removal laws existed in some states and territories until the late 1960s.[163] Other “protection” policies that had previously been introduced by colonial governments involved making indigenous Australians “wards of the state” and the establishment of government reserves where indigenous people were forced to live.[164]

In the 1930s, Australian governments adopted a national policy of assimilation, and this was again affirmed in 1951.[165] The states retained exclusive power over Aboriginal affairs under the Australian Constitution until a referendum in 1967 resulted in amendments that conferred power on the Commonwealth to make laws for Aboriginal people and also saw them counted in the national census for the first time.[166]

The struggle for land rights saw various developments in the 1970s, including the establishment by the Commonwealth government of the Aboriginal Land Rights Commission in 1973, leading to the passage of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Later, a landmark court decision in 1992 and the subsequent passage of the Native Title Act 1993 (Cth) saw indigenous people having a greater, albeit still limited, ability to claim rights in relation to certain land.[167]

The 1970s also saw the federal government move to a policy of self-determination for indigenous Australians, replacing the previous policy of assimilation. The government’s approach included the establishment of the Department of Aboriginal Affairs and the Aboriginal and Torres Strait Islander Commission, which was “composed of Indigenous peoples whose role was to maximise Indigenous participation in the development and implementation of policies that affected them.”[168] The Commission was formally abolished in 2005 and replaced with an advisory board.[169]

The 1990s saw the emergence of a policy of reconciliation on the part of different governments, including at the federal level. The Commonwealth government provided funding for the Council for Aboriginal Reconciliation in 1991, which was subsequently disbanded in 2000. In 2001, Reconciliation Australia, a nonprofit entity, was established and continues to receive federal government funding. Its activities include working with various organizations, including governments or individual government departments, to create Reconciliation Action Plans.[170]

In 1997, the Australian Human Rights Commission published a report on the findings of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, and several state and territory parliaments and governments issued statements apologizing to the stolen generations. Later, in February 2008, the Prime Minister of Australia delivered a national apology to the stolen generations. Some state governments have recently launched reparation programs for the stolen generations.[171]

There is currently a continued focus on reconciliation and self-determination, as well as an overarching framework related to “closing the gap” in various outcomes between indigenous and non-indigenous Australians.[172] There is also an ongoing discussion related to constitutional recognition of indigenous peoples, a policy to which the current government remains committed. A parliamentary joint committee tasked with recommending options for constitutional change was established in March 2018.[173]

B. Indigenous Heritage Legislation and Policies

The Commonwealth, state, and territory cultural heritage legislation of the 1970s and 1980s can be viewed in the context of policies related to land rights and the emerging focus on self-determination. Legislative and policy developments in some jurisdictions since the 1990s, including recent reform proposals, reflect an increased focus on partnership, consultation, and greater involvement of indigenous people in decision-making and management of their own heritage.[174]

State and territory governments have published information about policies and approaches to working directly with indigenous people, including in the areas of environmental and heritage protection. For example, the South Australia Department for Environment and Water states: “We acknowledge and respect Aboriginal people as the traditional custodians of South Australia, and work with them to care for Country. Caring for Country means working together to manage our state, and in particular places of environmental, historical, social, cultural and spiritual significance.”[175]

The Victorian government emphasizes self-determination as a central feature of its approach to working with indigenous peoples, stating that “[t]he devastating impact of failed policies can only begin to be turned around when Aboriginal people are supported to make their own decisions on matters such as governance, natural resource management, economic development, health care and social service provision.”[176]

The New South Wales government also includes self-determination and involvement in decision-making in its discussion of reforms to heritage legislation, stating “Aboriginal people must play a significant role in the management of their cultural heritage, and in the planning of their land.”[177] The current guidance regarding the implementation of the NPW Act with respect to Aboriginal heritage refers to enhancing communication and developing partnerships with Aboriginal people.[178]

However, commentators have stated that

[i]n recent years, the advocacy work of Indigenous traditional owners, community groups and academics has led to greater public awareness of the importance of Indigenous cultural heritage, as well as some positive legal reforms. However, legal protection of cultural heritage has often been, and continues to be, ineffective. One of the key reasons for this ineffectiveness is a piecemeal approach to protection of Indigenous cultural heritage.[179]

Back to Top

Prepared by Kelly Buchanan
Foreign Law Specialist
March 2019


[1] Indigenous Heritage Laws, Department of the Environment and Energy,http://www.environment.gov.au/ heritage/laws/indigenous (last visited Feb. 20, 2019), archived at https://perma.cc/Q9N7-L7HF.

[3] Id. at 15.

[4] Id. at 43.

[5] Id. at 42.

[6] Id. at 30.

[7] Id. at 9.

[9] Australian Heritage Strategy, supra note 2, at 43.

[10] Australia ICOMOS, Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance (2013), https://australia.icomos.org/wp-content/uploads/The-Burra-Charter-2013-Adopted-31.10.2013.pdf, archived at https://perma.cc/8JPM-R77Z.

[11] Charters, Australia ICOMOS,http://australia.icomos.org/publications/charters/ (last visited Feb. 20, 2019), archived at https://perma.cc/VU3V-FGZY.

[12] Environment Protection and Biodiversity Conservation Act 1999 (Cth), https://www.legislation.gov.au/ Details/C2018C00440, archived at https://perma.cc/3F3P-CDNN.

[13] Indigenous Heritage Laws, supra note 1.

[14] Australian Heritage Council Act 2003 (Cth), https://www.legislation.gov.au/Details/C2012C00249, archived at https://perma.cc/3FNE-YHBP.

[15] Australian Heritage Strategy, supra note 2, at 17.

[16] Indigenous Heritage, Department of the Environment and Energy,http://www.environment.gov.au/ heritage/about/indigenous-heritage (last visited Feb. 20, 2019), archived at https://perma.cc/D2KR-FFX3.

[17] Id.

[18] Id.

[19] Id.

[20] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), https://www.legislation.gov.au/ Details/C2016C00937, archived at https://perma.cc/A255-NQZ8.

[21] Australian Heritage Strategy, supra note 2, at 9.

[22] Indigenous Heritage, supra note 16.

[23] Id.

[24] Id.

[25] Australian Heritage Strategy, supra note 2, at 9.

[26] Protection of Movable Cultural Heritage Act 1986 (Cth), https://www.legislation.gov.au/Details/ C2016C01056, archived at https://perma.cc/QX9K-DQTR.

[27] See Movable Cultural Heritage, Department of Communications and the Arts,https://www.arts.gov.au/ what-we-do/cultural-heritage/movable-cultural-heritage (last visited Feb. 20, 2019), archived at https://perma.cc/BVE8-83FQ.

[28] The Control List is contained in the Protection of Movable Cultural Heritage Regulations 2018 (Cth), https://www.legislation.gov.au/Details/F2018L01710, archived at https://perma.cc/Y56Q-7LTC.

[29] The National Cultural Heritage Control List, Department of Communications and the Arts,https://www. arts.gov.au/what-we-do/cultural-heritage/movable-cultural-heritage/exporting-cultural-property-australia/ national-cultural-heritage-control-list (last visited Feb. 20, 2019), archived at https://perma.cc/5UGJ-DP6N; Protection of Movable Cultural Heritage Regulations 2018 (Cth) reg 1.3.

[30] The National Cultural Heritage Control List, supra note 29.

[31] Review of the Protection of Movable Cultural Heritage Act, Department of Communications and the Arts,https://www.arts.gov.au/have-your-say/review-protection-movable-cultural-heritage-act (last visited Feb. 20, 2019), archived at https://perma.cc/L7GJ-VE7V.

[32] Department of the Prime Minister and Cabinet, Legislation Proposed for Introduction in the 2018 Spring Sittings 3, https://www.pmc.gov.au/sites/default/files/publications/2018-spring-public-list.pdf, archived at https://perma.cc/W2W9-WMP6.

[34] Austin Sweeney, The Interaction of Cultural Heritage and Native Title, PBC, https://www.nativetitle.org.au/ learn/native-title-and-pbcs/interaction-cultural-heritage-and-native-title (last updated Aug. 16, 2018), archived at https://perma.cc/E63D-3HUS.

[35] Id.

[36] Id.

[37] Id.

[38] Indigenous Protected Areas, Department of the Environment and Energy,http://www.environment.gov. au/land/indigenous-protected-areas (last visited Feb. 20, 2019), archived at https://perma.cc/592L-N2AA.

[39] Id.

[40] Id.

[41] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 3(1).

[42] Id. ss 20 & 21.

[43] Protection Under State and Territory Laws, Department of the Environment and Energy,http://www.environment.gov.au/heritage/laws/indigenous/protection-under-state-and-territory-laws (last visited Feb. 20, 2019), archived at https://perma.cc/A7QA-G8ZB.

[45] Heritage in the ACT, ACT Environment, Planning and Sustainable Development Directorate - Environment(emphasis in original), https://www.environment.act.gov.au/heritage/heritage-in-the-act (last updated Nov. 20, 2018), archived at https://perma.cc/M7T8-RLCZ.

[46] Heritage Act 2004 (ACT) s 9(1).

[47] Id. s 51.

[48] Id. s 53.

[49] Id. ss 53A & 53B.

[50] Id. s 53C.

[52] Id. at 22.

[53] National Parks and Wildlife Act 1974 (NSW), https://www.legislation.nsw.gov.au/#/view/act/ 1974/80/whole, archived at https://perma.cc/PU2Y-69BP.

[54] Protection and Regulation of Aboriginal Cultural Heritage, NSW Office of Environment and Heritage, https://www.environment.nsw.gov.au/licences/achregulation.htm (last updated Jan. 12, 2018), archived at https://perma.cc/MEX3-5CPY.

[55] Id.; National Parks and Wildlife Act 1974 (NSW) pt 6.

[56] Protection and Regulation of Aboriginal Cultural Heritage, supra note 54; National Parks and Wildlife Act 1974 (NSW) s 87. Permits are governed by sections 90–90R of the Act. For detailed information on the permit process see NSW Office of Environment and Heritage, Guide to Aboriginal Heritage Impact Permit Processes and Decision-Making (version 2, Aug. 2011), https://www.environment.nsw.gov.au/resources/culture heritage/ 110397guideahipprocess.pdf, archived at https://perma.cc/YBE3-CPF7.

[57] Protection and Regulation of Aboriginal Cultural Heritage, supra note 54.

[58] National Parks and Wildlife Act 1974 (NSW) s 90Q.

[59] Id. ss 27 & 28.

[60] NSW Office of Environment and Heritage, Operational Policy: Protecting Aboriginal Cultural Heritage 22 (version 2, July 2011), https://www.environment.nsw.gov.au/resources/cultureheritage/ 110396oppolach.pdf, archived at https://perma.cc/X5TW-RFRK.

[61] Id. at 5.

[62] Id. at 10–11.

[63] See Consultation Requirements,NSW Office of Environment and Heritage, https://www.environment.nsw. gov.au/licences/consultation.htm (last updated Oct. 30, 2015), archived at https://perma.cc/K4Q7-RTYZ.

[64] See Guide to Investigating, Assessing and Reporting on Aboriginal Cultural Heritage in NSW, NSW Office of Environment and Heritage, https://www.environment.nsw.gov.au/licences/investassessreport.htm (last updated May 30, 2011), archived at https://perma.cc/P832-XDYY.

[65] Aboriginal Objects,NSW Office of Environment and Heritage, https://www.environment.nsw.gov.au/ nswcultureheritage/objects.htm (last updated Sept. 24, 2012), archived at https://perma.cc/J8G8-42LX. See also National Parks and Wildlife Act 1974 (NSW) ss 5 & 86.

[66] Aboriginal Objects, supra note 65.

[67] National Parks and Wildlife Act 1974 (NSW) s 83.

[68] Id. s 85.

[69] Id. s 85A.

[70] Protection and Regulation of Aboriginal Cultural Heritage, supra note 54.

[71] National Parks and Wildlife Act 1974 (NSW) s 5(1).

[72] NSW Transport, Roads and Maritime Services, Standard Management Procedures: Unexpected Heritage Items 33–34 (Mar. 2015), https://www.rms.nsw.gov.au/documents/about/environment/protect ing-heritage/managing-development/unexpected-heritage-items-procedure.pdf, archived at https://perma.cc/R7V8-MGLM.

[73] Aboriginal Cultural Heritage Reforms,NSW Office of Environment and Heritage, https://www.environ ment.nsw.gov.au/achreform/index.htm (last updated Dec. 12, 2018), archived at https://perma.cc/QJH9-L94F.

[74] Id. See also Heritage Reforms, NSW Aboriginal Affairs, https://www.aboriginalaffairs.nsw.gov.au/policy-reform/planning-and-heritage/heritage-reforms (last visited Feb. 20, 2019), archived at https://perma.cc/25ZR-NH8Q.

[75] The Reform Process,NSW Office of Environment and Heritage, https://www.environment.nsw.gov.au/ achreform/ACHreformprocess.htm (last updated Dec. 12, 2018), archived at https://perma.cc/RA42-A42B.

[77] Id. s 5.

[78] Northern Territory Aboriginal Sacred Sites Legislation, Aboriginal Areas Protection Authority, https://www.aapant.org.au/about-us/northern-territory-aboriginal-sacred-sites-act (last visited Feb. 20, 2019), archived at https://perma.cc/3LEA-H3X4.

[79] Authority Certificates, Aboriginal Areas Protection Authority,https://www.aapant.org.au/our-services/authority-certificates (last visited Feb. 20, 2019), archived at https://perma.cc/JUZ4-WZKW.

[80] How Are Sacred Sites Protected?, Aboriginal Areas Protection Authority,https://www.aapant.org.au/ sacred-sites/how-are-sacred-sites-protected (last visited Feb. 20, 2019), archived at https://perma.cc/2HBW-46FS.

[81] Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ss 33–35.

[82] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3, https://www.legislation.gov.au/Details/ C2016C00111, archived at https://perma.cc/C6DT-QEGN.

[83] Id. s 73(1).

[85] Sacred Sites, Heritage and Burials,Aboriginal Areas Protection Authority, https://www.aapant.org.au/ sacred-sites/sacred-sites-heritage-and-burials (last visited Feb. 20, 2019), archived at https://perma.cc/5B2Q-KFBF.

[86] Heritage Act 2011 (NT) s 75(1)(d).

[87] Id. pts 3.4 & 3.5.

[88] Id. s 8(2).

[89] Id. s 9.

[90] Id. s 111.

[91] Id. s 114.

[92] Indigenous Heritage Information, Northern Territory Government,https://nt.gov.au/leisure/arts-culture-heritage/indigenous-heritage-information (last updated July 5, 2018), archived at https://perma.cc/CNX2-HLTY.

[93] Heritage Act 2011 (NT)s 89(3).

[94] Sacred Sites, Heritage and Burials, supra note 85.

[97] See generally Aboriginal and Torres Strait Islander Cultural Heritage, Department of Aboriginal and Torres Strait Islander Partnerships (DATSIP), https://www.datsip.qld.gov.au/people-communities/aboriginal-torres-strait-islander-cultural-heritage (last updated Feb. 19, 2019), archived at https://perma.cc/9YMW-532K.

[98] What Is Cultural Heritage, DATSIP,https://www.datsip.qld.gov.au/people-communities/aboriginal-torres-strait-islander-cultural-heritage/what-cultural-heritage (last updated July 26, 2018), archived at https://perma.cc/P7TF-M56G. See also Aboriginal Cultural Heritage Act 2003 (Qld) ss 5 & 6; Torres Strait Islander Cultural Heritage Act (Qld) ss 5 & 6.

[99] Aboriginal Cultural Heritage Act 2003 (Qld) s 8; Torres Strait Islander Cultural Heritage Act (Qld) s 8.

[100] Aboriginal Cultural Heritage Act 2003 (Qld) s 23(1); Torres Strait Islander Cultural Heritage Act (Qld) s 23(1).

[101] Aboriginal Cultural Heritage Act 2003 (Qld) ss 24–26; Torres Strait Islander Cultural Heritage Act (Qld) ss 24–26.

[102] Aboriginal Cultural Heritage Act 2003 (Qld) s 32; Torres Strait Islander Cultural Heritage Act (Qld) s 32.

[103] Aboriginal Cultural Heritage Act 2003 (Qld) s 36; Torres Strait Islander Cultural Heritage Act (Qld) s 36.

[104] Aboriginal Cultural Heritage Act 2003 (Qld) pt 5; Torres Strait Islander Cultural Heritage Act (Qld) pt 5.

[105] Aboriginal Cultural Heritage Act 2003 (Qld) pt 6; Torres Strait Islander Cultural Heritage Act (Qld) pt 6.

[106] Aboriginal Cultural Heritage Act 2003 (Qld) pt 7; Torres Strait Islander Cultural Heritage Act (Qld) pt 7.

[107] Aboriginal Cultural Heritage Act 2003 (Qld) pt 2; Torres Strait Islander Cultural Heritage Act (Qld) pt 2.

[108] Aboriginal Cultural Heritage Act 2003 (Qld) s 8; Torres Strait Islander Cultural Heritage Act (Qld) s 8.

[109] Aboriginal Cultural Heritage Act 2003 (Qld) s 10.

[110] Torres Strait Islander Cultural Heritage Act (Qld) s 10.

[111] Aboriginal Cultural Heritage Act 2003 (Qld) s 14(3). See also Torres Strait Islander Cultural Heritage Act (Qld) s 14(3).

[112] Aboriginal Cultural Heritage Act 2003 (Qld) ss 15–18; Torres Strait Islander Cultural Heritage Act 2003 (Qld) ss 15–18. 

[113] Aboriginal Cultural Heritage Act 2003 (Qld) s 18; Torres Strait Islander Cultural Heritage Act 2003 (Qld) s 18. 

[114] DATSIP, Guidelines for the Discovery, Handling and Management of Human Remains, https://www.datsip.qld.gov.au/resources/datsima/people-communities/cultural-heritage/guidelines-human-remains.pdf (last visited Feb. 20, 2019), archived at https://perma.cc/NC2A-385F.

[115] Id. at 1–2.

[117] Aboriginal Heritage Act 1988 (SA), https://www.legislation.sa.gov.au/LZ/C/A/ABORIGINAL HERITAGE ACT 1988/CURRENT/1988.12.AUTH.PDF, archived at https://perma.cc/9442-LPFK.

[122] Department of the Premier and Cabinet, Aboriginal Heritage Fact Sheet: Project Planning and Aboriginal Heritage, https://www.dpc.sa.gov.au/__data/assets/pdf_file/0015/34602/FactSheet_ProjectPlanning.pdf (last visited Feb. 20, 2019), archived at https://perma.cc/E8M4-D955.

[123] Id.

[124] Id.

[125] Aboriginal Heritage Act 1988 (SA) s 20(1).

[126] Id. s 20(3).

[127] Id. s 23.

[128] Guidance, supra note 121; Department of the Premier and Cabinet, Aboriginal Heritage Fact Sheet: Discovery of Aboriginal Sites and Objects, https://www.dpc.sa.gov.au/__data/assets/pdf_file/0014/34601/Discovery_ SitesandObjects.pdf (last visited Feb. 20, 2019), archived at https://perma.cc/5VEA-Y5H7.

[129] Aboriginal Heritage Fact Sheet: Project Planning and Aboriginal Heritage, supra note 122.

[131] Id. s 7.

[132] Legislation, Aboriginal Heritage Tasmania,https://www.aboriginalheritage.tas.gov.au/legislation (last updated Nov. 14, 2018), archived at https://perma.cc/KX32-K84C.

[133] Aboriginal Historical Places Introduction, Aboriginal Heritage Tasmania,https://www.aboriginalheritage. tas.gov.au/cultural-heritage/aboriginal-historical-places-introduction (last updated Aug. 7, 2018), archived at https://perma.cc/GJQ9-7NW8.

[134] Aboriginal Heritage Act 1975, Aboriginal Heritage Tasmania, https://www.aboriginalheritage.tas.gov.au/ items-of-interest/aboriginal-heritage-act-1975 (last updated Aug. 31, 2018), archived at https://perma.cc/GHW6-2GSK.

[135] Aboriginal Heritage Council, Aboriginal Heritage Tasmania,https://www.aboriginalheritage.tas.gov.au/ aboriginal-heritage-council (last updated Feb. 7, 2019), archived at https://perma.cc/3QF9-7X7D.

[136] Aboriginal Heritage Act 1975 (Tas) s 10(3).

[137] Id. s 14.

[138] Id. s 7.

[139] Id. ss 11 & 12.

[140] Aboriginal Heritage Tasmania, Unanticipated Discovery Plan, https://www.aboriginalheritage.tas.gov.au/ Documents/UDP.pdf (last visited Feb. 20, 2019), archived at https://perma.cc/9DP2-WD2N. See also Coroners Act 1995 (Tas) s 23, https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1995-073, archived at https://perma.cc/6MMP-6DFC.

[143] Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2018, Aboriginal Victoria,https://www.vic.gov.au/aboriginalvictoria/heritage/aboriginal-heritage-act-2006-and-the-aboriginal-heritage-regulations-2018.html (last visited Feb. 20, 2019), archived at https://perma.cc/VFM3-9LMF.

[144] Protection of Aboriginal Heritage, North East Catchment Management Authority,https://www.necma. vic.gov.au/Solutions/Indigenous-Heritage/Protection-of-Aboriginal-heritage (last visited Feb. 20, 2019), archived at https://perma.cc/CLX6-ZJ63.

[145] Victorian Aboriginal Heritage Council, Department of Premier and Cabinet,https://www.dpc.vic.gov.au/ index.php/contact-us/25-aboriginal-affairs (last visited Feb. 20, 2019), archived at https://perma.cc/SC4X-Q57L.

[146] Aboriginal Heritage Act 2006 (Vic) s 24. See also Aboriginal Places, Objects and Land Management, Aboriginal Victoria, https://www.vic.gov.au/aboriginalvictoria/heritage/aboriginal-cultural-heritage-of-victoria/ aboriginal-places-objects-and-land-management.html (last visited Feb. 20, 2019), archived at https://perma.cc/H5EZ-MX6W.

[147] Aboriginal Heritage Act 2006 (Vic) s 27.

[148] Report Ancestral Remains, Victorian Aboriginal Heritage Council, https://www.aboriginalheritage council.vic.gov.au/report-ancestral-remains (last updated Jan. 14, 2019), archived at https://perma.cc/KPD6-Q2ES.

[149] Aboriginal Heritage Act 2006 (Vic) s 7(2), 12

[150] Id. s 18(2)(b).

[151] Id. ss 19A & 20.

[153] Protection under the Aboriginal Heritage Act 1972, Department of Planning, Lands and Heritage (DPLH),https://www.dplh.wa.gov.au/information-and-services/aboriginal-heritage/protection-under-the-aboriginal-heritage-act-1972 (last updated Dec. 20, 2018), archived at https://perma.cc/GL2J-6XUU.

[156] Id.

[157] Aboriginal Heritage Act 1972 (WA) s 15.

[158] Id. s 17(b).

[159] Review of the Aboriginal Heritage Act 1972, DPLH, https://www.dplh.wa.gov.au/aha-review (last updated Jan. 22, 2019), archived at https://perma.cc/RZR6-P4PA. See also Press Release, Ben Wyatt, Aboriginal Heritage Legislation to be Reviewed (Mar. 9, 2018), https://www.mediastatements.wa.gov.au/Pages/McGowan/ 2018/03/Aboriginal-heritage-legislation-to-be-reviewed.aspx, archived at https://perma.cc/JX4G-QUEU.

[161] Id.

[162] Historical Context –The Stolen Generations, Bringing Them Home,https://bth.humanrights.gov. au/signif icance/historical-context-the-stolen-generations (last visited Feb. 21, 2019), archived at https://perma.cc/6Z7H-CP38.

[163] Id.

[164] In the Name of Protection, Australians Together,https://australianstogether.org.au/discover/australian-history/protection/ (last visited Feb. 21, 2019), archived at https://perma.cc/7XAW-R8UP.

[165] Id.

[166] Id.

[167] See Anna Kelsey-Sugg & Annabelle Quince, Watershed Moments in Indigenous Australia’s Struggle to be Heard,ABC News (updated July 3, 2018),https://www.abc.net.au/news/2018-07-04/complex-history-of-indigenous-and-non-indigenous-australia/9930944, archived at https://perma.cc/NWK5-A95P.

[168] The Indigenous Civil Rights Movement in Australia, Australians Together,https://australianstogether. org.au/discover/australian-history/civil-rights-movement/ (last visited Feb. 21, 2019), archived at https://perma.cc/R2YR-YFGA.

[169] See Angela Pratt & Scott Bennett, The End of ATSIC and the Future Administration of Indigenous Affairs (Australian Parliamentary Library Current Issues Brief No. 4 2004-05, Aug. 9, 2004), https://www.aph.gov.au/ About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/Current_Issues_Briefs_2004_-_2005/05cib04, archived at https://perma.cc/8ABR-XSF3.

[170] See Reconciliation Australia, Department of the Prime Minister and Cabinet,https://www.pmc.gov.au/ indigenous-affairs/culture-and-capability/reconciliation-australia (last visited Feb. 21, 2019), archived at https://perma.cc/5HTM-RGZS.

[171] See Historical Context –The Stolen Generations, supra note 162.

[172] Closing the Gap, Department of the Prime Minister and Cabinet,https://www.pmc.gov.au/indigenous-affairs/closing-gap (last visited Feb. 21, 2019), archived at https://perma.cc/CB77-25FT.

[173] See Constitutional Recognition,Department of the Prime Minister and Cabinet,https://www.pmc.gov.au/ indigenous-affairs/constitutional-recognition (last visited Feb. 21, 2019), archived at https://perma.cc/HT9L-VJ5J.

[174] For discussion of historical developments regarding the regulation of Aboriginal cultural heritage matters seeNational Native Title Tribunal, Indigenous Cultural Heritage Schemes in Victoria, Queensland and Northern Territory: An Overview 4–6 (May 2009), http://www.nntt.gov.au/Information%20 Publications/ Vic-Qld-and-NT-heritage-overview.pdf, archived at https://perma.cc/RF76-UQDB; National Native Title Tribunal, Commonwealth, State and Territory Heritage Regimes: Summary of Provisions for Aboriginal Consultation (Dec. 2010), http://www.nntt.gov.au/Information%20Publications/Heritage-regimes-Aboriginal-consultation.pdf, archived at https://perma.cc/NA8K-8ULY.

[175] Aboriginal Partnerships, SA Department for Environment and Water,https://www.environment.sa.gov. au/about-us/aboriginal-partnerships (last visited Feb. 21, 2019), archived at https://perma.cc/PQ6U-VZ8P.

[176] Self-Determination, Aboriginal Victoria,https://www.vic.gov.au/aboriginalvictoria/policy/self-determination.html (last visited Feb. 21, 2019), archived at https://perma.cc/A93A-ALJ7.

[177] See Planning and Heritage, NSW Aboriginal Affairs,https://www.aboriginalaffairs.nsw.gov.au/policy-reform/planning-and-heritage (last visited Feb. 21, 2019), archived at https://perma.cc/VFH9-XFCK.

[178] Operational Policy: Protecting Aboriginal Cultural Heritage, supra note 60, at 7.

[179] Lauren Butterly & Hon Justice Rachel Pepper, Are Courts Colourblind to Country? Indigenous Cultural Heritage, Environmental Law and the Australian Judicial System, 40(4) UNSW L.J. (Advance) (2017), at 1, http://www.unsw lawjournal.unsw.edu.au/wp-content/uploads/2017/11/404_7.pdf, archived at https://perma.cc/X3PD-39R4.

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Last Updated: 12/30/2020