Cultural heritage protection applications under Commonwealth legislation on the rise

What you need to know

• Sections 9, 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) enable the Commonwealth Minister for the Environment to make a declaration for the protection and preservation of significant Aboriginal areas and objects from injury or desecration.  
• The number of applications being made has continued to increase, following the upward trend since 2019. 
• Finding the ATSIHP Act inadequate for a range of reasons, the Joint Standing Committee's final report into the Juukan Gorge incident, A Way Forward, recommended that a new framework for cultural heritage protection be legislated at the national level.  

What you need to do

• Be aware that a protection application under the ATSIHP Act is a powerful means by which Traditional Owners can express dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.
• Don't underestimate the work and time required to gain robust heritage approvals.

Recap of the ATSIHP Act declaration application provisions

Sections 9 and 10 of the ATSIHP Act enable an Aboriginal person or a group of Aboriginal people to make an application to the Minister (in writing or orally) seeking a declaration for the preservation or protection of a specific significant Aboriginal area from injury or desecration. 

A critical precondition to a declaration is that the Commonwealth Minister forms the view that the area is not adequately protected under State or Territory legislation.

Protection applications made in 2021 and 2022

In our Native Title Year in Review 2020 article "The trend continues: More protection applications made under the Commonwealth heritage protection legislation", 1 April 2021, we correctly predicted increased recourse to the ATSIHP Act. 

There have been an unprecedented number of new applications made in the last 12 months including in Tasmania, New South Wales, the Northern Territory, South Australia and Queensland. With lodgement occurring faster than resolution, newly installed Minister for the Environment and Water, Tanya Plibersek, has some difficult decisions ahead.

We summarise these applications below:

New South Wales

• 415 and 417 Barry Way, near Cobbin Creek, Jindabyne: A section 10 application has been made by a representative of the Ngarigo Nation Indigenous Corporation, to protect an area known as 415 and 417 Barry Way near Cobbin Creek, Jindabyne in New South Wales. The applicant attributes the potential injury or desecration to a proposed residential development. More details can be found here. 
• Dunmore Sand and Soil Project: Two section 10 applications have been brought to protect an area known as Stage 5 (Stage 5A and Stage 5B) of the Dunmore Sand and Soil Project, Dunmore, New South Wales. The applicants seek to protect the area from archaeological excavation, salvage works and proposed sand mining associated with the project. More details can be found here. 
• Dhiiyaan Aboriginal Centre: This section 10 application to protect an area known as the Dhiiyaan Indigenous Centre (now Dhiyaan Aboriginal Centre) has been made by a representative of the Indigenous Community of Moree in New South Wales. The applicant attributed the threat of injury or desecration to the denial of Kamilaroi control over the specified area, and in particular the Dhiiyaan Indigenous Collection. More details can be found here. 
• Wahluu/Mount Panorama: On 30 April 2021, Federal Environment Minister Sussan Ley declared the Wahluu/Mount Panorama Site in Bathurst, New South Wales, to be a significant Aboriginal area, blocking the construction of a go-kart track. This followed an emergency declaration the Minister made under section 9 on 5 March 2021, signed only days before work was to begin on the track. On 9 June 2021, the ABC reported that the Bathurst Regional Council had confirmed that it would not challenge the decision. 
  
  In November 2021, the Wiradyuri Traditional Owners Central West Aboriginal Corporation made a further application to extend the area of protection to six parts near and overlapping Wahluu/Mount Panorama. The applicant claims that the area is under threat from the construction of a second racing circuit, circuit maintenance and preparation, remediation works, the construction of a dwelling, and geotechnical test pits and bore holes for construction of a pipeline. More details can be found here. 
• Point Plomer Road: This section 10 application was made by representatives of the Dunghutti Elders Council (Aboriginal Council) Registered Native Title Body Corporate. The Applicant sought to protect the area of Point Plomer Road, near Kempsey, New South Wales from the threat of roadworks, underground powerlines, and an increase in visitation to sites of significance that would result from sealing the road. The section 10 application followed an unsuccessful application for an emergency declaration under section 18 of the ATSIHP Act, which was reported in February. More details can be found here. 
• McPhillamys Gold Project: A section 10 application was made by a Wiradjuri elder for the protection of an area known McPhillamys Gold Project, Kings Plains, Blayney, New South Wales. The applicant sought to protect the area from mining activities, including drilling activities. More details can be found here.

Tasmania

• Robbins Island: This section 10 application has been made on behalf of the Tasmanian Aboriginal people to protect the area of Robbins Island, Boullanger Bay wetlands and Robbins Passage, North-west Tasmania between Stanley and Smithton. The applicant seeks to protect the area from a proposed project to develop a renewable energy park on the island. More details can be found here. 

South Australia

• Sandy Bore, APY Lands:  A section 10 application has been brought to protect an area at Sandy Bore, APY Lands, in South Australia. The applicant seeks to protect a reburial site of a traditionally buried child, which had been listed on the Aboriginal Affairs and Reconciliation’s (AAR) central archives under section 23 of the Aboriginal Heritage Act 1988 (SA), along with the larger area associated with the life of the child and the Minyama Kutjara-ku Tjukurpa ('The Two Sisters’) dreaming. More details can be found here.   
• Lake Torrens: A section 10 application was made on behalf of the Kokatha People and Aboriginal People for the protection of the area known as Lake Torrens, South Australia. The applicant attributed the potential injury or desecration to drilling activities. More details can be found here. 

Northern Territory

• Mount Peake Mine: This section 10 application has been brought on behalf of the Kaytej Traditional people to protect the area known as Mount Peake Mine, near Wilora, Northern Territory. The applicant attributes the proposed threat to the drilling and sterilisation proposed by mining company TNG Ltd, and asserts that the drilling would threaten at least five fauna species part of the Mount Peake Dreaming. More details can be found here. 

Queensland

• Djaki Kundu: On 19 May 2021, a section 10 application was made on behalf of the Sovereign Native Tribes of the Kabi First Nation State to protect the area known as Djaki Kundu, near Gympie, Queensland. The applicant attributed the potential threat of injury or desecration to the Queensland Department of Transport and Main Roads Bruce Highway – Cooroy to Curra project. The applicant stated that the project works would destroy a number of sacred sites, prevent the free exercise of religious and spiritual practice and destroy the foundations of spirituality and tribal law or lore customs and culture. More details can be found here. 

The A Way Forward Report

The Joint Standing Committee on Northern Australia Inquiry into the destruction of the Juukan Gorge released its final report entitled A Way Forward in October 2021.  The Committee noted that the increase in applications made since the incident indicated that the existing system of protection by declaration was being used proactively as far as possible.  However, the report was critical of the regime under the ATSIHP Act, including for:

• being legislation of last resort;  
• being limited as a means for protecting cultural heritage as a holistic concept; 
• the delays in making declarations, with the average time for making a declaration after an application had been made being approximately two years; 
• heritage continuing to be under threat even once a declaration had been made; and 
• the input and resources required from Aboriginal and Torres Strait Islander peoples. 

Legislative reform

We discuss progress on the Way Forward Report's recommendations for legislative reform in our article "Modernisation of cultural heritage protection legislation begins".

As set out in that article, the former Federal Government entered into an agreement with the First Nations Heritage Protection Alliance to jointly consider and develop recommendations for reform. That joint working group's reform timetable has already slipped and there have been no specific announcements in this space from the new Government since the election. It will be some time before we see new legislation.

In the meantime, protection applications under the ATSIHP Act are a powerful means by which Traditional Owners can express their dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.  

Authors: Brigid Horneman-Wren, Lawyer and Amaya Fernandez, Senior Associate.