Cultural heritage by region: Understanding State and Territory differences

Proponents should engage with impacted First Nations groups before any proposed work is undertaken to enable Free, Prior and Informed Consent (FPIC). 

The Heritage Act 2004 (HA (ACT)) protects and conserves First Nations tangible or intangible cultural heritage. There are offences and enforcement provisions for breaching the Act.

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

The Heritage Act establishes the ACT Heritage Council responsible for maintaining a register of heritage places and objects. The Council works with ACT Heritage to recognise, protect, conserve and celebrate heritage places and objects.

By law, consultation must be undertaken with First Nations before considering any proposed work or activity that may cause harm to First Nations cultural heritage.

Aboriginal Heritage Impact Permits must be sought before any work is undertaken.

The Aboriginal Cultural Heritage Consultation Requirements for Proponents sets out requirements for consulting with First Nations people. 

The First Nations Guidelines for the NSW Electricity Infrastructure Roadmap: Guidance on engaging with local Aboriginal communities on electricity infrastructure projects to increase income and employment opportunities for Aboriginal people provide practical advice for project proponents on respectful engagement and meaningful collaborations required under the Electricity Infrastructure Investment Act 2020. This includes preparation of an Industry and Aboriginal Participation Plan documenting the engagement approach and the agreed commitments with Aboriginal people and businesses.

There is also the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW, and the Guide to Investigating, Assessing and Reporting on Aboriginal Cultural Heritage in New South Wales.

Cultural heritage in NSW is primarily dealt with by the National Parks and Wildlife Act 1974. Under the Act it is an offence to damage a First Nations object or place. 

The Act establishes the Aboriginal Cultural Heritage Advisory Committee to advise and make recommendations to government on matters affecting First Nations cultural heritage, and the Aboriginal Heritage Impact Management System to record First Nations sites, objects and declared places. 

Other relevant legislations include the Heritage Act 1977, the Environmental Planning and Assessment Act 1979, and the Aboriginal Land Rights Act 1983.

The Northern Territory has the strongest protection for First Nations sacred sites in the country, and a general requirement for engagement. 

Sacred sites are places in the landscape, or above or below water, that have deep cultural heritage significance to First Nations people. 

Proponents must engage with First Nations groups to ensure their wishes and interests are taken into account in decision-making processes and exercises relating to sacred sites. 

There cannot be any work undertaken in the Northern Territory unless a sacred site clearance certificate is obtained. A sacred site certificate can be obtained either from the relevant Aboriginal Land Council (guided by the Aboriginal Land Rights (Northern Territory) Act 1976, or the Aboriginal Areas Protection Authority (AAPA).

The Aboriginal Areas Protection Authority (AAPA) oversees the protection of, and maintains a register of, sacred sites, guided by the Northern Territory Aboriginal Sacred Sites Regulations 2004. AAPA can issue Authority Certificates if there is no substantive risk to sacred sites, or if an agreement has been reached with traditional custodians.

The Northern Territory Aboriginal Sacred Sites Act 1989 (NTASSA) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 assist in the protection of cultural heritage and sacred sites.

Offences include entering or remaining on land that is a sacred site without permission, usage or working on a sacred site, desecrating a sacred site, or non-compliance with an Authority Certificate that results in damage to a sacred site or distress to a custodian.

The Heritage Act 2011 includes a Heritage Register and an obligation to report the discovery of First Nations and Macassan archaeological places and objects to the Heritage Branch. The Heritage Branch supports the NT Heritage Council, set up through the Act to provide advice to government on matters affecting the Territory’s cultural and natural heritage. 

First Nations cultural heritage exists, regardless of land tenure. Proponents must engage with First Nations before undertaking any activities. 

Cultural heritage bodies serve as the first point of contact for cultural heritage matters. 

Proponents should search the Aboriginal and Torres Strait Islander Cultural Heritage Online Portal to find a registered cultural heritage body for an area and their contact details, and also details about impacted Aboriginal or Torres Strait Islander parties in an area.

Aboriginal or Torres Strait Islander statutory parties – including native title holder and claimants, and First Nations recognised as being responsible for or who have particular knowledge about traditions, observances, customs or beliefs associated with an area – are key in assessing cultural heritage and managing any activity likely to excavate, relocate, remove or harm cultural heritage in an area.

The Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld) require that proponents carrying out an activity take all reasonable and practical measures to ensure no harm to cultural heritage.

Under the Act’s cultural heritage duty of care guidelines, proponents must include an agreement with First Nations towards an approved Cultural Heritage Management Plan (CHMP) when an environmental impact statement is required for a project. The cultural heritage management plan guidelines can assist.

To address cultural heritage with certainty, a Cultural Heritage Management Plan can also be voluntarily agreed to by Traditional Owners and proponents.

A cultural heritage database and register has been established under the Acts.

The first point of contact for proponents is engaging with impacted First Nations groups.

Three state-appointed Recognised Aboriginal Representative Bodies (RARBs) are able to speak for cultural heritage in a particular area. RARBs advise the Minister in relation to specified sites and objects. In areas where native title has been determined, the Prescribed Body Corporate (PBC) or Registered Native Title Body Corporate is the RARB.

The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984 provide vested title of certain lands to relevant Traditional Owners. Both Acts empower Traditional Owner ‘body corporate’ decision-making over development, access and other matters, meaning there cannot be any work undertaken by proponents unless consent has been provided.

The Aboriginal Heritage Act 1988 (SA) guides the protection and management of 'tangible' Aboriginal cultural heritage including sites and objects. Under the Act, Traditional Owner groups and proponents can make an agreement on the management of cultural heritage.

Under the Act, it is an offence to damage, disturb or interfere with an Aboriginal site, object or remains without authorisation from the Minister. There are also criminal penalties where information relating to a First Nations site, object, remains or traditions is divulged in contravention of First Nations tradition.

The Aboriginal Lands Trust Act 2013 offers cultural heritage protections and establishes the Aboriginal Lands Trust which holds land titles on behalf of First Nations people.

First Nations likely to be impacted by proposed developments or activities must be engaged with before any action is taken.

Proponents must obtain preliminary information from Aboriginal Heritage Tasmania. 

Aboriginal Heritage Tasmania administers the​ Aboriginal Heritage Act 1975​​ which provides statutory guidelines whereby a prononent’s ‘approach’ to Aboriginal heritage is characterised as an exercise of due diligence, with general obligations to report new findings and not to harm relics.

Aboriginal Heritage Standards and Procedures assists proponents navigate processes for the protection and management of Aboriginal heritage and required permits.

There are penalties for damaging Aboriginal heritage under the Act. 

Aboriginal Heritage Tasmania also administers the Aboriginal Lands Act 1995 establishing the Aboriginal Land Council of Tasmania, the Native Title (Tasmania) Act 1994, and oversees the implementation of Aboriginal cultural management outcomes in the Tasmanian Wilderness World Heritage Area Management Plan 2016.

Three areas of Tasmania have been declared protected sites under the Act, including West Point Aboriginal Site, Sundown Point Aboriginal Site, and Maxwell River Protected Archaeological Site.

The Act establishes the independent Tasmanian Aboriginal Heritage Council advising the Tasmanian Government, land managers and owners on the protection and management of Aboriginal cultural heritage. The Aboriginal Heritage Register holds a database of Aboriginal heritage places and objects of significance. 

Proponents proposing to undertake activities in Victoria need to apply for a Cultural Heritage Permit. 

The Aboriginal Heritage Regulations 2018 provide guidance on when a Cultural Heritage Management Plan (CHMP) may also be required for a ‘high impact activity’ in an area of 'cultural heritage sensitivity'. The Aboriginal Heritage Planning Tool can assist to determine if a proposed development classifies as a high impact activity.

Proponents must engage Heritage Advisors to assist in preparing Cultural Heritage Management Plans for activities that could impact Aboriginal cultural heritage. Even if not required, proponents may find a Cultural Heritage Management Plan is an effective risk mitigation strategy. 

To apply for a cultural heritage permit, determine a cultural heritage management plan, or enter into a cultural heritage agreement, contact the relevant Registered Aboriginal Party (RAP) and if there is no RAP, the Secretary to the Department of Premier and Cabinet.

In Victoria, First Nations Registered Aboriginal Parties (RAPs) determine the approach to cultural heritage on behalf of the Traditional Owners over a specified geographical area. RAPs report to the independent Victorian Aboriginal Heritage Council which advises the Minister. RAPs also have responsibilities relating to the management of Aboriginal cultural heritage under the Aboriginal Heritage Act 2006 (AH Act) (Vic), which include evaluating Management Plans for their area.

Legislation protecting cultural heritage also includes the Traditional Owner Settlement Act 2010 (Vic) where some activities having a significant impact on Traditional Owner rights cannot go ahead without First Nations consent. 

There are criminal penalties for knowingly damaging cultural heritage. 

The Aboriginal Heritage Act works in conjunction with the Planning and Environment Act 1987 to manage permits and work approvals relating to cultural heritage. The AH Act also creates a Victorian Aboriginal Heritage Register, including for the return of places, objects and ancestral remains, and maintains the Aboriginal Cultural Heritage Register and Information System.

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

Proponents must engage with impacted First Nations to ensure a project’s cultural heritage protections are mutually designed and enforced. 

For activities in the nearly 320,000 hectares of land in the Noongar Land Estate recognised through the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016, proponents must engage with the relevant Noongar Regional Corporation and/or South West Aboriginal Land and Sea Council. Proponents must enter into Noongar Standard Heritage Agreements (determining when and how to carry out heritage surveys on Noongar Lands) and other Aboriginal Heritage Agreements (as defined by the six South West Native Title Settlement Indigenous Land Use Agreements) in their respective ILUA areas. 

Engagement must also consider economic participation and community development.

Western Australia’s Aboriginal Heritage Legislation Amendment and Repeal Act 2023 repealed the Aboriginal Cultural Heritage Act 2021 and reinstated, with modifications, the Aboriginal Heritage Act 1972. Proponents should note there may be places of cultural heritage significance not recognised under the Act, and to take guidance from Traditional Owners through mutually beneficial Free Prior and Informed Consent (FPIC) processes and agreements.

There are different types of approvals under the Aboriginal Heritage Act, and in the Aboriginal Heritage Regulations 1974. The Aboriginal Heritage Act 1972 Guidelines can assist proponents in determining whether an intended land use poses a risk of committing an offence under the Act. 

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

The Heritage Council of Western Australia provides legal protection to places assessed as being important to the State under the Heritage Act 2018.