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Cultural Heritage

The indigenous peoples of Australia hold a living memory of the places and sites of significance that are now below the sea. The continuing connection to those places that this memory affords renders those sites part of their cultural heritage, and indigenous heritage protections must be extended to protect them and to preserve the associated knowledge and stories.


Underwater cultural heritage is not currently protected. As Dr Mick O’Leary explains in MAMMUNG the Film, although a huge portion of indigenous cultural heritage is underwater, only one underwater indigenous cultural heritage site is recorded for the purposes of preservation.


Indigenous cultural heritage protections exist in Australian law at both the State and Federal levels. These Aboriginal Cultural Heritage Acts require that an assessment be done of the potential impacts of any proposed project on sites of aboriginal significance prior to the approval the project. However, no such legal protections exist for offshore projects that occur in ‘sea country’. Thus, even if sites had been recorded, there exists no procedure to assess the impacts of offshore activity on those sites. As a natural corollary to the finding that aboriginal cultural heritage exists at sea, as it does on land, so should the Australian system of heritage protection extend to those areas.


International Law on Heritage


The UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in Resolution 61/295 provides that indigenous peoples have the right to practice and revitalise their cultural traditions and customs, including the right to maintain and protect the archaeological and historical sites and artefacts (Article 11), the right to maintain and strengthen their distinctive spiritual relationship with their waters and coastal seas to uphold their responsibilities to future generations (Article 25), and the right to maintain, control, protect and develop their cultural heritage (Article 31).


This document is a statement of customary international law, meaning that it applies to every state and is the minimum standard that is to be met by governments when managing indigenous affairs. The extension of the cultural heritage protections to sea country is an action required to meet this international standard.


Recent Developments in Australian Law


On 2 December 2022 a landmark decision was handed down by the Full Court of the Federal Court of Australia on the protection of sea country. The case was bought by Tiwi Senior Lawman Dennis Tipakalippa on behalf of the Munupi Clan in order to defend their cultural connection and their right to be consulted on developments affecting it.


This case did not extend the application of aboriginal heritage protections to those offshore areas, but instead provided for the consultation of indigenous communities where sea country is affected by a development.


The Court made comments suggesting that aboriginal cultural heritage could, theoretically, exist in sea country stating that the “Heritage Protection Act recognises the capacity for sea country, and its marine resources, to be ‘of particular significance to Aboriginals in accordance with Aboriginal tradition’” thus indicating that “federal Parliament has expressly contemplated the protection of areas of the sea from activities harmful to the preservation of Aboriginal tradition” which protection would require “only the existence of a connection by Aboriginal tradition.” Even though the Court also stated that “references to the Heritage Protection Act […] are not intending to suggest that the Heritage Protection Act was applicable to Santos’ proposed drilling activities”.


These statements are significant for future heritage protections of sea country.


Rather than dealing with heritage matters, the case concerned one particular regulation, reg 11A of the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) which requires that a “titleholder” must consult each “relevant person”, being a person “whose functions, interests or activities may be affected by the activities to be carried out under the environment plan”. The Court made a very important finding by stating “we consider it clear that Mr Tipakalippa and the Munupi clan had interests within the meaning of reg 11A(1)(d) that required them to be consulted” and found that “’interests’ includes cultural and spiritual interests”.


This decision is incredibly important in establishing that future offshore projects must consult the traditional owners of sea country before proceeding.


Need for Reform of Heritage Laws


The Western Australian Aboriginal Heritage Act, which was enacted in 1972, was drafted in a time where there was no consultation with indigenous people and creates a system that is geared towards hearing from anthropologists and scientists rather than incorporating the voices of the indigenous groups, despite them having a living culture in relation to the areas concerned.


The Act has been recently reviewed and a new one will come into force in 2023. However, many are concerned that the flaws of the 1972 Act have not been remedied and that this new act will be just ‘more of the same’.


A complaint was filed with the UN Committee on Racial Discrimination requesting a review of the new Act, labelling it incompatible with Australia’s human rights obligations. The complaint pointed to the fact that Traditional Owners are “unable to say ‘no’ to activities which will destroy significant cultural heritage”.


A response from the committee in the form of a ‘please explain letter’ expresses the committee’s concern about “whether the draft appropriately incorporates the right to free, prior and informed consent of concerned communities” and the fact that it is not the aboriginal people affected who make the decision, but the Minister.


Under the Aboriginal Heritage Legislation, the finding that sites of recognised aboriginal heritage will be affected by a proposed project does not necessarily stand in the way of its approval.


Between 1 July 2010 and 14 May 2020 463 applications were made under the Act for developments in mining lease areas that would destroy or impact aboriginal cultural heritage sites, and all were approved. There is even one case in which the WA parliament passed an Act to excise a particular development area from the operation of the Aboriginal Heritage Act when the operation of the Act hindered development. Following approval, only the proponent, and not the indigenous community, has the right to appeal the Minister's decision.


While the extension of aboriginal heritage protections to sea country is necessary, we must bear in mind that significant changes are also required to this legal regime on land. If and when it is extended to sea country, it should be done in a manner that amends the shortcomings of the Western Australian heritage protections and provides a model on which reforms of current heritage legislation on land can be based.

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