What is First Nations Cultural Heritage? 

“Sixty-five thousand years of uninterrupted heritage, demonstrated by archaeological evidence, makes our continent unique in the world… Australia’s landscape, waters, and seas, collectively referred to as ‘country’, are alive with a profusion of heritage places. Imbued with the essence of ancestral beings that created them, it is through these places that family descent and kinship connections flow.” Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia

See our Cultural Heritage basic explainer

Aboriginal and Torres Strait Islander heritage, both contemporary and ancient, is celebrated nationally and on the global stage as one of the world’s longest continuously enduring human civilisations. Archaeological investigations that led to the discovery of human remains from the late 1960s onwards in the region of Willandra Lakes of southwest NSW, virtually rewrote the world’s ‘pre-history’ period of humanity. Today we have First Nations authors and academics celebrating their cultural heritage with titles such as Loving Country: A guide to sacred Australia or Welcome to Country: A travel Guide to Indigenous Australia.

In Welcome to Country, Marcia Langton has written something of a Lonely Planet guidebook to First Nations Australia. It covers pre-colonial history, cultural landscapes and artifacts, and takes us on a joyful contemporary journey to locations in each state and territory across this ancient continent. 

[Image: Daisy Walkabout at a burn of country near Katiti Waterhole from Welcome to Country. Photo: Jessica Bolton.]

Langton reflects that perhaps the greatest legacy of the pre history peoples is to be found in the vegetation patterns and other evidence of tens of thousands of years of continent-wide land management regimes as discussed in Bill Gammage’s The Biggest Estate on Earth and more recently in Bruce Pascoe’s Dark Emu. 

However, this degree of appreciation and celebration of First Nations’ cultures has not always been the case.

Read the ANTaR Cultural Heritage Protection Background Paper

History of Cultural Heritage awareness in Australia

The first one hundred years of European colonisation was a period of intentional silence about the very presence of the First Nations peoples of Australia. The heart of Aboriginal and Torres Strait Islander culture – a sacred person-land-ancestral-interrelationship – was wantonly destroyed and communities marginalised.

[Image: Sacred Birthing Trees The destruction of a sacred tree on Djab Wurrung country, Victoria. Photo: Sean Paris]

The ’Timeline’ below shows the slow evolution from that silence to a growing awareness and more recently positive pathways towards conservation and appreciation for First Nations cultural heritage, and its great value for all Australians.

Timeline of Cultural Heritage Protection in Australia 

1870s: The idea of colonial/European ‘built’ heritage in Australia emerged in the 1870’s. [All further timeline items, unless otherwise referenced, are drawn from Deep Time Dreaming]

1900: Colonising communities begin to protest the disappearance of their colonial buildings in the cities and towns.

1938: Archaelogists begin to make public please for legislation to preserve of pre-history and Aboriginal relics.

1950s-60s: Archaeologists begin to publicly condemn looting of Aboriginal sites and looting of relics.

1964: The Australian Institute of Aboriginal Studies (AIAS) is established. In 1989, it became the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). 

1965: Australian Council of National Trusts and the Australian Conservation Foundation is established

1967: The Referendum whereby Australians voted to allow the Commonwealth Government to make laws for Aboriginal people and include them in the Census count. 

1965-1975: All states pass minimal legislation to preserve and protect Aboriginal sites. The Acts were the results of long-term advocacy by archaeologists and conservationists along with growing public interest in Australia’s natural and cultural heritage. 

1973: Federal government establishes the Aboriginal Arts Board of the Australia Council, advocated by archaeologist Bob Edwards who argued that the arts were the key to changing attitudes towards First Nations peoples and their heritage.

1974: Federal government ratified UNESCO World Heritage Convention and passed the Australian Heritage Commission Act – integrating natural and cultural heritage strands.

1976-1983: The Franklin River Campaign to stop the Tasmanian government damming the river for hydroelectric power was won in the High Court case, Commonwealth v Tasmania. Records show that the Judges’ decision was swayed by archaeological evidence that the region had been occupied by humans from 20,000 years ago.

1981: Willandra Lakes Region, UNESCO world heritage status. The evidence of occupation establishes that humans were in Australia by 42,000 years ago. The discovery of human remains - Mungo Lady and Mungo Man- rewrote the ancient story of this land and sent shock waves around the world.

1984: The first Commonwealth Aboriginal and Torres Strait Islander Heritage Act introduced.

1992: Mabo High Court of Australia decision recognised that Aboriginal and Torres Strait Islander peoples have rights to the land – rights that existed before the British arrived and continue.

1993: Introduction of the Native Title Act. A momentous development, a legal structure for protecting First Nations culture.  Under this framework, sacred and significant sites and objects have the potential to be protected, not within the historical category of Aboriginal Heritage, but rather as matters valued in present-day First Nations culture that have ongoing significance

1997: Indigenous Protected Areas (IPA) program was established. These areas are ‘land and sea country’ owned or managed by First Nations groups, as protected areas for biodiversity conservation through an agreement with the Australian Government. 

1999: Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC). Australia’s first effort at a truly national scheme of environment and heritage protection and biodiversity conservation. The Act establishes the National Heritage List, which includes First Nations places of outstanding heritage value.

2003: The Australian Heritage Council is established by the Australian Heritage Council Act. It assesses nominations for the National Heritage List and the Commonwealth Heritage List and makes recommendations to the Minister for the Environment. The final decision on listing is made by the Minister. The Council includes First Nations heritage experts.  

2006: The Wave Hill Walk-Off Route was added to the National Heritage List. The Gurindji’s actions and demands for equal wages had attracted national attention, leading to their community becoming the first Aboriginal community to have land returned to them.  

2009: Australia ratified the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), after initially voting against it.  The Declaration highlights Indigenous rights to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 

2015: The Australian Heritage Strategy is expanded as the Australian Government’s expert advisory body on heritage matters. This document sets out a ten-year framework to address national priorities and reach desired outcomes in relation to heritage places. 

2016: The Federal governemt’s State of the Environment Report (SoE) Heritage Strategy is released. The SoE reports provide information about environmental and heritage conditions, trends and pressures every five years. They cover the Australian continent, surrounding seas and Australia’s external territories. (the 2021 Review is in process). 

2018: The unification of Aboriginal and Torres Strait Islander (ATSI) Heritage Chairs into the Heritage Chairs of Australia and New Zealand (HCOANZ). This landmark event finally brought First Nations cultural heritage representatives to a national level.

Since January 2020:

  • Publication of Dhawura Ngilan (Remembering Country): A vision for Aboriginal and Torres Strait Islander heritage in Australia Heritage Chairs of Australia and New Zealand and Best Practice Standards in Indigenous cultural heritage management and legislation. This publication provides a roadmap for improving approaches to Aboriginal and Torres Strait Islander heritage management in Australia.
  • The tragic destruction of 46,000 year old invaluable First Nations’ heritage site Juukan Gorge in WA by mining company Rio Tinto. 
  • The First Nations Heritage Protection Alliance was created at a crisis meeting immediately after the deliberate destruction of Juukan Gorge WA, by Rio Tinto mining company in May 2020. The goal is to vow to pursue national reforms to prevent this from ever happening again. The Alliance represents Aboriginal Land Councils, Native Title Representative Bodies and Aboriginal and Torres Strait Islander Community Controlled Organisations.
  • Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) presented to the Federal Government. This latest ten-yearly statutory reporting requirement for the EPBC Act presents an urgent wake up call to Australia’s Federal government that fundamental reform is necessary to manage the state of the environment. 

The destruction of Juukan Gorge and what is happening to protect our Cultural Heritage

On 24 May 2020, a sacred rock shelter in the Pilbara region of Western Australia was legally blasted by mining company Rio Tinto. An archaeology report had stated that it was of the highest archaeological significance in Australia containing a cultural sequence spanning over 40,000 years, with a high frequency of flaked stone artefacts, rare abundance of faunal remains, unique stone tools, preserved human hair and with sediment containing a pollen record charting thousands of years of environmental changes.

[Juukan Gorge in WA’s Pilbara Region before and after the 2020 destruction by Rio Tinto]

The grief, shock and outrage has reverberated globally. 

As Terri Janke notes in Our Culture: Our Future, Australia and the world lost access to ‘intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems’ of human life going back 46,000 years. 

In a brutally honest and thorough analysis of the long history of relationships between First Nations ownership and mining rights across Australia, Clare Wright a Professor of history says that ‘Juukan represents the pinnacle of the colonial mining project’. It demonstrated the almost total disregard of traditional owners as stakeholders when it comes to negotiating mining backed by government interests across Australia. She says: 

“In a matter of minutes, eight million tonnes of ore were ripped from the earth, and with them, 46,000 years of cultural heritage destroyed… For this hefty price we all paid, Rio Tinto lawfully gained access to $135 million dollars of high-grade iron ore.”

Distinguished academics in the department of Law Reform and Social Justice at the Australian National University conducted a webinar panel discussion, ‘Destruction of Juukan Gorge, Law, Mining and the Protection of Aborginal Heritage’ in November 2020. They discussed how all levels of government legislation failed to protect such an invaluable site, how Traditional Owners are locked out of the process and they identify principles and strategies to inform updated legislation. Dr Virginia Marshall stated ‘‘We are burning our libraries” while archeology Professor Peter Veth warned that

“We have seen the end of a long and conflicted era…. in this tragedy… We are at a critical point in recognition of Indigenous primacy in heritage in this country.”

Why and how did it happen? 

The  Puutu Kunti Kurrama Pinikura (PKKP) people “were let down by Rio Tinto, the Western Australian Government, the Australian Government, their own lawyers, and Native Title Law”. 

Rio Tinto had acted within the legal requirements. Widespread backlash has turned the spotlight onto Australia’s outdated, severely inadequate and poorly coordinated cultural heritage legislation across Federal and State governments. Over time, amendments have been made to the processes for application to preserve a site. However, Traditional Owners continue to be marginalised in the process and the significant power of ministerial discretion to override the limited protections is used far too often. In the Juukan case, the Commonwealth, with its Aboriginal and Torres Strait Islander Heritage Act, of 1984, and Western Australia with its Aboriginal Heritage Act 1972 were responsible for this failure.

[Image: Ningura Napurrula, Untitled, 2008. Archaeological evidence links these famous contemporary track-and-circle paintings marking out a cultural landscape of Central Australia to rock art formations of the Pleistocene era.]

Where are we up to?

If there was a silver lining to the Australian and international travesty that was the wanton destruction of the Juukan Gorge, it is that this event became a catalyst for action. Three significant initiatives have since begun:

  • The Federal Government Senate Enquiry initiated June 2020 into the Juukan Gorge disaster delivered its Final Report in October 2021; 
  • A new, determined and unified alliance of First Nations leadership from around the country, the First Nations Heritage Protection Alliance (FNHPA), formed in June 2020; and 
  • A contentious bill to replace the 1972 Cultural Heritage Bil (WA) was passed by WA parliament on 22 December 2021.

In light of Juukan Gorge, the leadership of the 2021 NAIDOC Committee chose a fitting theme, Heal Country, stating:

We cannot afford to let pass the very real opportunity that now presents itself for reform based on a fundamental change in the relationship Australia has with Aboriginal and Torres Strait Islander peoples 

The Review 

The Federal government’s Senate Enquiry into the Juukan Gorge tragedy, A Way Forward Final report states:

It is inconceivable that Australia has not developed proper protections for such sites, and action must be a matter of national priority.

The Report recommendations promise ‘fundamental reforms’. These include:

  • the foundational need to have Traditional Owners as authorities at the table at the beginning of any application for development on lands owned by First Nations communities; 
  • the need for an overarching Commonwealth legislative framework; 
  • the articulation of heritage standards; and 
  • the need to find a balance in the battle between economic development and preservation of cultural heritage. 

The FNHPA has been working on a 4-pronged approach:

  • Achieving legislative reform; 
  • Engaging with the Federal government to consult First Nations communities;
  • Reforming how miners and big business operate; and 
  • developing partnerships in the investment sector. 

The co-chairs of the FNHPA have said the ‘immense burden’ of pursuing social, cultural and environmental rights had fallen to Aboriginal land councils and native title bodies under complex and varied legislative regimes. They therefore welcome a new national approach- one that seeks a new perspective of ‘celebrating… not subjugating’ Aboriginal cultural heritage to the juggernaut of the extractive industries. 

On 29 November 2021, after many months of negotiations the FNHPA signed an historic First Nations partnership Alliance with the federal government

The National Native Title Council (NNTC) Chair and co-Chair of the FNHPA, Kado Muir  has said, the partnership is:

“An historic and exciting day…

They (leadership of the Federal government) have partnered with Aboriginal and Torres Strait Islander people, First Nations People, to {co-}design legislative reform that protects cultural heritage…

This is unique because we’ve essentially signed a partnership agreement which means at the highest level, we’re able to engage and be part of law reform…

This encourages full protection as a national standard, at a federal level.”

FNHPA is also working proactively on the ground with mining companies facilitating a path forward to enhance the influence and voice of Traditional Owners.  One such company is BHP, which has been developing a set of principles that reaffirm free, prior and informed consent in agreement making. Kado Muir has said: 

Together we are determined to drive industry reform and legislative change that improves both agreement making and the protection of Aboriginal cultural heritage which is of immense value to all Australians. 

The third promising development, instigated by investor backlash towards Rio Tinto and the Juukan Gorge destruction, is a partnership initiative between FNHPA members and investment organizations such as Global Compact Network Australia and the Responsible Investment Association Australasia. In this work, FNHPA are promoting Dhawura Ngilan, to educate investment stakeholders. This document provides a roadmap for improving approaches to Aboriginal and Torres Strait Islander heritage management in Australia and sets out Best Practice Standards in Indigenous cultural heritage management and legislation. 

The task of this partnership is complicated by the opaque nature of Australia’s standard of governance for mining, gas and oil sectors. Despite being a major producer in these sectors, Australia lags ‘way behind’ other OECD nations in addressing corruption and financial transparency. 

Read the ANTaR Cultural Heritage Protection Background Paper