Legal standards for protecting cultural heritage

Australia has legal frameworks that operate to protect and manage cultural heritage. These laws acknowledge the rights of First Nations to their cultural heritage and provide mechanisms for their active participation in its protection and management.

Please click on any of the States and Territories on the map below to identify the different laws and standards in each jurisdiction relating to First Nations cultural heritage, noting that jurisdictions can have different legal processes for identifying entities.

The clean energy industry is required under cultural heritage legislation to engage with Traditional Owners regarding potential cultural heritage impacts. 

Remembering Juukan, meeting legislative standards is not sufficient. In many cases, heritage agreements between First Nations and proponents may provide more robust protections than legislation alone.

Proponents are encouraged to move beyond the minimum legislative compliance standards for cultural heritage management. Current Australian cultural heritage legislation offers mixed results for protecting First Nations cultural heritage in line with international obligations such as United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and does not represent leading practice. 

First Nations cultural heritage is primarily managed by states and territories through various legislative and policy settings, with Victoria’s Aboriginal cultural heritage legislation generally considered the best in the country. There is as yet no nationally coordinated approach to the management of cultural heritage in Australia. 

At a Commonwealth level, the following legislation relates to First Nations heritage in Australia:

• Native Title Act 1993 (Cwth) - assists in protecting First Nations cultural heritage in areas where native title may exist, or has been determined to exist, through future act processes and recognised native title rights. Native title holders can negotiate cultural heritage protection and monitoring measures in Indigenous Land Use Agreements (ILUAs), section 31 agreements, and ancillary agreements, before future act works are undertaken.
• Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSHIPA) - allows the Commonwealth to override any state-based Cultural Heritage approval, and to intervene and preserve and protect areas and objects of particular significance to First Nations peoples from being desecrated or injured. 
• Underwater Cultural Heritage Act 2018 - protects underwater First Nations cultural heritage in Commonwealth waters.
• Protection of Movable Cultural Heritage Act 1986 (Cwth) - ensures objects with cultural significance remain in Australia.
• Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) - protects Australia’s National Heritage List which includes First Nations, and also World Heritage, Commonwealth places, and Commonwealth marine areas. 
• Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cwth)