State of the Environment

2006

Indicator: NCH-13 Changes in heritage legislation

Data

Types of heritage protected by [main] State / Territory heritage legislation
Types in 1995 Types in 2000 Types in 2005
ACT
Heritage Act 2004		 Historic
Natural
Indigenous
Objects (diff legislation)		 Historic
Natural
Indigenous
Objects (diff legislation)		 Historic
Natural
Indigenous
Objects
NSW
NSW Heritage Act 1977
1999 amendments		 Historic
??		 Natural
Indigenous
Historic
Objects		 Natural
Indigenous
Historic
Shipwrecks?
Objects
NT
Heritage Conservation Act 1991 		 Historic Natural
Indigenous
Objects		 Historic Natural
Indigenous
Objects		 Historic Natural
Indigenous
Objects
Qld
Queensland Heritage Act 1992 		 Historic
Indigenous
Some natural		 Historic
Indigenous
Some natural		 Historic
Some natural
SA
Heritage Act 1993		 Historic Historic Historic
Tas
Historic Cultural Heritage Act 1995		 Historic
Shipwrecks		 Historic
Shipwrecks		 Historic
Shipwrecks
Vic
Heritage Act 1995		 Historic
Shipwrecks
Objects?		 Historic
Shipwrecks
Objects?		 Historic
Shipwrecks
Objects
WA
Heritage of Western Australia Act 1990		 Historic Historic Historic

ACT - until 2004 heritage places -natural, Indigenous and historic, protected by the Land (Planning and Environment) Act 1991 (Land Act) and heritage objects by the Heritage Objects Act 1991 .
NSW - recorded Indigenous sites protected by National Parks and Wildlife Act 1974.
NT - Aboriginal Sacred Sites protected by Northern Territory Aboriginal Sacred Sites Act 1989
Qld - Indigenous heritage now protected under Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003
SA - Indigenous heritage protected by The Aboriginal Heritage Act 1988  ; shipwrecks by South Australian Historic Shipwrecks Act 1981
Tas - recorded Indigenous sites protected by Aboriginal Relics Act 1975
Vic - recorded Indigenous sites and objects protected by Archaeological and Aboriginal Relics Preservation Act 1972; Indigenous heritage places protected by the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 , 1987 amendment.
WA - recorded Indigenous sites protected by Aboriginal Heritage Act 1972-80

Changes to Heritage Legislation
Australia 2000-2005
State / Territory 2000 2001 2002 2003 2004 2005
Commonwealth Yes A
new heritage legislation
ACT Yes B - new heritage legislation
NSW Yes C - amendments to Heritage Act Yes - amendments to Heritage Regulations
NT D Legislation review launched
Qld Yes E
New Indigenous legislation
SA * Yes -
amendments to native vegetation Act and Regulations		 * Yes F -
new legislation to address listing and development control processes
Tas G Review of legislation
Vic Yes - Amendments to Indigenous legislation Yes H
amendment to include objects
WA I Historic draft bill prepared Yes - Amendments to Indigenous legislation

Notes:
* minor amendments made by other legislation
A end of Australian Heritage Commission Act 1975 with amendments to the Environment Protection and Biodiversity Conservation Act 2003 and the Australian Heritage Council Act 1999 starting new system of heritage protection at national level
B the ACT Heritage Act 2004 results from a major review of the ACT heritage regime, and is designed to be implemented through the land planning system with the ACT Planning and Land Authority's development approvals processes.
C In NSW, Heritage Amendment Act 2001
D In NT, a review launched in early 2004 of the Heritage Conservation Act 1991
E In Queensland, as of 28 November 2003, the Queensland Heritage Act 1992 has been amended and incorporated into the Integrated Planning Act 1997 (IPA); Indigenous heritage received separate legislation as the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003.
F In South Australia, Heritage (Heritage Directions) Amendment Bill 2005 passed with Development (Sustainable Development) Amendment Bill 2005 to be debated September 2005 to address listing and development control processes impacting on state and local heritage places and to consolidate land use controls into a single process (SA Submission to Productivity Commission)
G In Tasmania, Nature Conservation Act 2002  for the conservation and protection of the flora, fauna and geological diversity of the State, and the declaration of national parks and other reserved land; a review of Indigenous legislation, the Aboriginal Relics Act 1975
H In Victoria, in 2004, the Heritage Act 1995 was amended to include significant heritage objects in their own right, and penalties were increased; since 2001, there have been a number of amendments to the Schedule of local Aboriginal communities and associated regulations in the Aboriginal and Torres Strait Islander Heritage Protection 1984 . Also, the Victorian Government is currently developing new legislation to replace the existing Archaeological and Aboriginal Relics Preservation Act 1972 .
I In WA, changes in the Aboriginal Heritage Act 1972-80 were effected in 2004, relating to Section 57, with significant increase in penalties for damage / disturbance to sites.

Sources: State/Territory heritage agencies;

Source: Government of South Australia 2005, The Government of South Australia: Submission to the Productivity Commission Inquiry into the Policy Framework and Incentives for the Conservation of Australia's Historic Heritage Places, Productivity Commission, viewed 9 Nov 2006, http://www.pc.gov.au/inquiry/heritage/subs/sublist.html.

Victorian Indigenous Heritage - Aboriginal community areas in Victoria

Aboriginal community areas in Victoria

Source: Aboriginal Affairs Victoria 2006, Welcome to the Aboriginal Affairs Victoria Website, viewed N/A.

Indigenous land in Australia and its distribution
Indigenous land area in 1996
('000km²)		 %
Indigenous land in 1996		 Increase in area 1996-2001(km²)
Commonwealth A n/a n/a 32,480.7
NSW & ACT 1.6 <1.0 11.4
NT 584.0 50.2 3,500
Qld 42.0 3.6 0
2005
SA		 190.0 16.4 0
Tas 4.8 <1.0 0.5
Vic 14.0 1.2 0
WA 326.0 28.0 0
Total
ILC B estimate		 1,162,400
Total minimum Increase 35,992.6
Proportion of Australia (%) 15.1 15.6

A - purchased by various Commonwealth agencies, ATSIC, NTA, ILUA, ILC
B - ILC - Indigenous Land Corporation

Derived from Source: Department of the Environment and Heritage 2001, Indigenous control on Indigenous heritage, viewed 9 Jun 2006, http://www.deh.gov.au/soe/2001/heritage/pubs/part06.pdf, Table 36.

Source: D P Pollack 2001, Indigenous land in Australia: A quantitative assessment of Indigenous landholdings in 2000, Centre for Aboriginal Economics, Australian National University, Canberra, viewed 9 Jun 2006, http://www.anu.edu.au/caepr/Publications/DP/2001_DP221.pdf.

Indigenous Protected Areas

There are currently 19 Indigenous Protected Areas under the National Reserve System totaling some 13,241,160 hectares; others are in the process of management plan development and consultation within their Indigenous communities and with other stakeholders.

Indigenous Protected Areas
Australia 2005
State / Territory IPAs
Until 2000		 Total area
ha		 IPAs
After 2000		 Total Area Added
ha		 Total IPAs Total Area
ACT 0 0 0 0 0 0
NSW 0 0 2 5091 2 5091
NT 1 100,000 0 0 1 100,000
Qld 1 100 1 3500 2 3600
SA 4 2,486,000 1 385,500 5 2,871,500
Tas 5 4468 0 0 5 4468
Vic 1 453 1 248 2 701
WA 0 0 2 10,247,500 2 10,247,500
Total 12 2,599,321 7 10,641,839 19 13,241,160

Source: Department of the Environment and Heritage 2005, Declared Indigenous protected areas, viewed 9 Jun 2006, http://www.deh.gov.au/indigenous/ipa/declared/index.html

Indiginous Protected Areas of Australia: December 2004

Indiginous Protected Areas of Australia: December 2004

Source: Department of the Environment and Heritage 2006, Location of Indigenous Protected Areas in Australia, viewed 5 Jun 2006, http://www.deh.gov.au/indigenous/ipa/map.html

Indigenous Land Use Agreements and Indigenous Cultural Heritage

Indigenous Land Use Agreements
Australia - September 2004
State / Territory Total No. of ILUAs No. of ILUAs with Cultural Heritage provisions Proportion of ILUAs with Cultural Heritage provisions
ACT 0 0
NSW 4 3 75%
NT 36 13 36%
QLD 80 47 59%
SA 2 1 50%
TAS 0 0
VIC 11 10 91%
WA 2 1 50%
TOTAL 135 75 56%

Source: Wallis, L. Johnston, D. and Wiseman, L. 2004, Cultural Heritage, Native Title, Industry and Custodians, AIATSIS, Canberra.

What the data mean

The amendments to the Commonwealth’s Environment Protection and Biodiversity Conservation Act 1999, in 2003, broadened the definition of ‘environment’ to include the heritage values of places. These values include its natural and cultural environment having aesthetic, historic, scientific or social significance or other significance for current and future generations of Australians.

There have been changes to the existing legislation in all States and Territories in the period between 2000 and 2005.

New legislation at the Commonwealth level and in the ACT continues to protect Indigenous heritage places as well as natural and cultural ones, including objects in the ACT.

In Queensland, new legislation for Indigenous heritage provides separate legislation for both Aboriginal and Torres Strait Islander heritage. This new legislation is part of a trend to provide Indigenous people with a greater statutory control over their heritage, as well as giving greater recognition to intangible heritage values, rather than as in the past, merely tangible archaeological sites. The new legislation recognises that Indigenous people are the primary guardians, keepers and knowledge holders of their cultural heritage, grants them ownership of human remains and secret-sacred material, yet maintains Crown (state) ownership of other cultural heritage on freehold land. Registered Cultural Heritage Bodies, of which there were four in September 2005, have defined areas under the legislation for which they are the first point of contact with the role of ascertaining who can ‘talk for country’.

In other states, notably in Victoria and Tasmania current ‘relics’ legislation is being reviewed. Such legislation provides protection to all sites, prior to heritage assessment and without referral to Indigenous community groups about the heritage value of these sites to them. The shift has been to remove such blanket ‘relics’ protection in favour of heritage assessment by the relevant Indigenous groups, providing them with a greater control of their heritage.

Victorian Indigenous Heritage

Victoria has not only maintained its early ‘relics’ legislation, now being reviewed and redeveloped, but in 1987 had special amendments to the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Part IIA Victorian Aboriginal Cultural Heritage) delegated to Victoria. This legislation was the first of its kind to provide control to Indigenous communities in deciding what was heritage and what should be protected in the face of proposed developments. Defined areas, communities and processes are set in place for such decisions about Indigenous heritage.

The map: “Aboriginal community areas in Victoria”, shows the 23 Aboriginal Community Areas in Victoria together with the 5 Cultural Heritage Regions of Aboriginal Affairs Victoria. These regions are specified in the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Commonwealth) as having responsibility for Cultural Heritage issues.

Indigenous land in Australia and its distribution

Taking control of land is seen as a major step towards Indigenous control of heritage places (State of the Environment (SOE) Report 2001, Natural and Cultural Heritage Theme 06-2). This is also widely seen as a broader social and cultural benefits as recognised by the national government body that purchases land for Indigenous communities:

Although the purpose of the ILC is to provide economic, environmental, cultural or social benefits, by assisting with land acquisition and management, priority must be given to social and cultural benefits. Source: Indiginous Land Council 2004, National Indigenous Land Strategy 2001-2006, viewed 5 Jun 2006, http://www.ilc.gov.au/webdata/resources/files/NILS.pdf.

Indigenous Land Use Agreements and Indigenous Cultural Heritage

Heritage knowledge, protection and conservation are enhanced in declared Indigenous protected areas, as they must have a management plan in place which describes how the area will be managed, including matters such as animal and weed control, the significant values of the area, cultural and natural heritage conservation and the establishment of infrastructure to regulate visitor access.

In April 2000 there were only 6 Indigenous Land Use Agreements registered under the Native Title Act 1992, in September 2004 there were 135 across most states / territories. With over 50% including provision for protection of the cultural heritage of the relevant Indigenous community, these agreements provide at least another form of recognition and protection. It is not however clear whether these agreements provide any added protection to that provided by Indigenous heritage legislation.

Data Limitations

The information on State and Territory legislation comes primarily from State and Territory agencies but cannot be considered a comprehensive outline of the provisions of past legislation, new legislation and the changes. This is particularly relevant to amendments to existing legislation, which requires more analysis of the implications for heritage conservation and the relationship to planning regimes in states and territories. Delegation to local government, such as in NSW, provides another layer of protection, but the details of the changes nor the trends from past practice have not been analysed for the 2006 SoE report.

At a broader level, a key change in heritage legislation in most jurisdictions is the shift to a greater inclusion of different types of heritage in heritage registers. A shift in the past from buildings to industrial heritage, ruins and landscapes has broadened to include natural places, Indigenous sites and objects significant in their own right, rather than objects and artifacts associated with a listed place. This trend takes place while there is still separate legislation for Indigenous sites. In Queensland, new Indigenous heritage legislation was passed in 2003, and while Indigenous heritage had previously been administered by the same agency as historic heritage, it has been moved to another government department.

The changes to heritage legislation at the national level came into effect on 1 January 2004, but it is as yet too soon to identify the actual differences in heritage conservation as a result. No data was analysed regarding management advice under the new system.

The data presented here have not provided information about the provisions in Indigenous heritage legislation for special declarations of Indigenous heritage places, nor of access agreements to heritage places that may be made in certain states / territories with land owners.

Indigenous land in Australia and its distribution

It has not been possible to update the data regarding Indigenous land tenure beyond that shown. There is also no data found that outlines a greater knowledge of Indigenous heritage as a result of such land tenure. Other programs which provide access to land include cultural heritage knowledge and management quite specifically in their aims, such as the Indigenous Protection and the Indigenous Land Use Agreements under the Native Title Act 1992.

These data do not include the many and increasing regional and local agreements between Indigenous peoples and landowners.

The data do not look at the processes of consultation and referral to relevant Indigenous communities under heritage legislation and other legislation, such as the Native Title Act 1992, and issues surrounding which groups and individuals are determined to speak for the heritage and its values in that area, including consent or agreement to proposed actions.

Indigenous Land Use Agreements and Indigenous Cultural Heritage

Details of the Indigenous Land Use Agreements are not made public which makes it difficult to ascertain the nature and level of protection offered, unlike the management plans of the Indigenous Protection Areas.

Issues for which this is an indicator and why

Natural and Cultural Heritage — Responses to conserve heritage - Heritage legislation 

Recent changes in heritage legislation are a direct indicator of efforts to respond to heritage issues.

Other indicators for this issue:

Biodiversity — Landscapes - Government action on landscape protection 

Changes in natural heritage legislation is one example of Government action on landscape protection.

Other indicators for this issue:

Australian Antarctic Territory — Cultural heritage aspects - Responses for conserving heritage sites and collections 

Changes in natural heritage legislation is one example of Government action on landscape protection. Legislation should help protect Australia’s Antarctic cultural heritage as well as heritage within the Australian continent.

Other indicators for this issue:

Key

   Links to another web site
   Links to data in the DRS
   Opens a pop-up window

PDF files

Adobe Acrobat Reader  is required to view PDF files.

If you are unable to access a PDF file, please contact us to organise a suitable alternative format.