Declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) are so rare that it’s easy to forget that this avenue of protection for cultural heritage exists.
But last week, Minister for the Environment and Water Tanya Plibersek made a rare declaration of a ‘significant Aboriginal area’ under s 10 of the ATSIHP Act.
The declaration relates to part of the Belubula River, its headwaters and its springs, at Kings Plains, near Blayney in New South Wales. The area was to house a tailings dam for the McPhillamys Gold Project. The declaration is that the relevant area is a significant Aboriginal area that is to be preserved and protected from injury and desecration.
The ATSIHP Act came under some scrutiny in the wake of the destruction of the 46,000 year old caves at Juukan Gorge by Rio Tinto in 2020. In the Joint Standing Committee for Northern Australia’s report on that tragedy, Never Again, the Committee recommended that the Australian Government urgently review the adequacy of the ATSIHP Act.
The ATSIHP Act operates alongside State and Territory cultural heritage legislation and is seen as a remedy of last resort. Applications for protection under the ATSIHP Act often take years to resolve, and with declarations being so rarely made, Traditional Owners seeking to protect their cultural heritage have not placed much optimism in the Federal regime. This declaration shows that applications can be successful and perhaps, following the Juukan Gorge disaster, the current government may be more willing to make them.
Importantly, the declaration should also serve as a reminder to project proponents and governments that protection of Aboriginal and Torres Strait Islander cultural heritage cannot just be an afterthought. It is vital to work closely with Traditional Owners early in the planning phases to ensure that a project will not damage Aboriginal or Torres Strait Islander cultural heritage.
The application was made by Mrs Nyree Reynolds, Wiradjuri elder, on the basis that the area is of particular significance in accordance with Aboriginal tradition for the following reasons:
- the presence of Aboriginal sites, with one site still used by the Aboriginal Community today;
- its spiritual connection to the Belubula River and its headwaters;
- its connection to Aboriginal people past; and
- its national significance in the events of the NSW Frontier Wars.
The declaration means that it is an offence for a person to engage in any conduct that will, or is likely to, injure or desecrate the declared area. The following is a non-exhaustive list of the things which were declared to be prohibited:
- undertaking any mining activities within the declared area;
- constructing any bulk earthworks on the declared area;
- sealing any part of the declared area, including with concrete;
- undertaking any activity that will, or is likely to, significantly alter the landform or course of water flowing within the declared area;
- conducting any drilling activities or preliminary activities associated with drilling;
- conducting any clearing activities or preliminary activities associated with clearing;
- disturbing native vegetation or soil in a way that will, or is likely to, damage the declared area.
Minister Plibersek’s media release said:
The headwaters are of particular significance to Wiradjuri/Wiradyuri people and are linked to ongoing cultural practices of the area. They have featured in many traditions practiced for generations including by Aboriginal people transitioning from youth to young adulthood. Some of these traditions have been disclosed to me privately and must remain confidential due to their cultural sensitivity. If this site were to be desecrated, it would be a threat to the continuance of Wiradjuri/Wiradyuri culture.