Despite its size, the Australian Capital Territory (ACT) certainly does not lack significant and diverse First Nations cultural heritage. The Ngunnawal and Ngambri peoples are the traditional custodians of the First Nations lands in the ACT.
First Nations communities have inhabited this region for over 20,000 years, with it being a significant meeting place for the nearby Gundungurra, Yuin, Wiradjuri, Wolgalu and Ngarigo peoples; because of First Nations presence, the area is home to tangible artefacts like scar trees, rock shelters, and rock art sites like that of the Namadgi National Park. Major campsites have been recorded near the Black Mountain Peninsula, lower slopes of Mount Ainslie, and near the Sullivan’s Creek Botanic Gardens.
First Nations communities have deep cultural interest in conservation, sustainability, water, and fire management, and contribute to the continuity and renewal of complex relationships between individuals and the environment. Over thousands of years, Ngunnawal and Ngambri people have maintained cultural connectivity and spiritual links to sites, places, and art. However, the ability to care for Country and heritage diminished with European settlement and the forcible displacement of First Nations people in the ACT, and around Australia.
Today, besides NSW, the ACT — which became self-governing in 1988 — is the only other jurisdiction without specific legislation for First Nations cultural heritage protection. There is a common perception that government disregards traditional knowledge, and heritage systems are set up to impede First Nations and environmental interests.
In 2004, the Heritage Act (ACT) was enacted. Under this general legislation, which replaced the Heritage Objects Act 1991, a place or object is of heritage value to the ACT if its loss would significantly impoverish the heritage of the ACT. While the Heritage Act primarily protects non-Indigenous heritage, the Act also provides blanket protection for Aboriginal places and objects, which are defined as follows:
The Heritage Act also establishes the ACT Heritage Council, which is responsible for maintaining the register of heritage places and objects. A welcome feature of the Heritage Act is its granting of decision-making power to the Heritage Council rather than to a Minister, a legislative feature also seen in the Northern Territory. In 2024, the Heritage Amendment Bill was passed that requires the Minister to appoint two Aboriginal Community Representatives to the Council, instead of one, to strengthen consideration of First Nations culture and history in decision-making. Despite this, as of 2025 there appear to be no First Nations members appointed to the ACT Heritage Council.
Four registered Aboriginal Organisations are required to be consulted about First Nations heritage decisions but this requirement falls far short of self-determination in relation to cultural heritage matters. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples articulates that First Nations peoples possess the inherent right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures. Currently, the councils First Nations representatives, chosen by the Minister, only have backgrounds in First Nations Culture and artefact protection.
Although the Heritage Act has been updated to reflect some First Nations understandings of cultural heritage, it does not include a cultural heritage duty of care: a measure to ensure land users take reasonable steps to ensure their activity does not harm culturally significant sites. Without a cultural heritage duty of care, serious mistakes – such as the ‘wrongful’ removal of two significant scar trees in 2017 by an ACT Government contractor – are more likely to occur. There are also calls for the Act to be supported by greater funding and for definitions of heritage to be broadened to include other areas of natural resource management, including water.
In 2020, the ACT Government introduced the Heritage Amendment Act 2020 (ACT) to further discourage damage to an Aboriginal place or object. The Act includes new ‘repair damage’ directions that give the Heritage Council the authority to direct people to repair any damage if it can be repaired. Failure to comply with the repair damage direction can incur fines of $80,000 for an individual and $405,000 for a corporation. Further, the amendment allows compliance officers to issue immediate fines of $1,000 to an individual or $5,000 to a corporation for damage to heritage places or objects or Aboriginal places or objects, regardless of whether they can be repaired. Again, despite the ‘safeguards’ in the legislation, proposed development and activity onsites of First Nations significance, such as those on Mount Ainslie, have not been properly investigated.
In 2023, the Legislative Assembly for the Australian Capital Territory (LAACT) conducted an inquiry into ACT’s heritage arrangements. The inquiry received many submissions noting the shortcomings of the Heritage Act in adequately protecting First Nations heritage. The Environmental Defenders Office (EDO) told the Committee that there was no real mechanism for members of the community, including First Nations people, to be able to enforce the Heritage Act.
Many submissions also advocated for recognising intangible heritage, which is not recognised under the Heritage Act. The National Trust of Australia (NTA) stated that the Act relies ‘on the presence of physical objects and structures.’ This makes it difficult to protect sites of significance to First Nations people that non-Indigenous institutions and individuals may not recognise, understand or appreciate, causing anger and distress to First Nations people. A focus on physical objects in the Act means First Nations heritage is viewed as an obstacle to redevelopment rather than an asset to be celebrated and protected. Artefacts are seen as removable and relocatable, rather than intrinsically linked to the place. The EDO did highlight that the definition of ‘Aboriginal tradition’ in the Act could include intangible heritage, but argued that protection must be made explicit. Protection of First Nations cultural heritage would be strengthened by a more proactive definition that strongly recognises intangible cultural heritage.
According to the National Trust of Australia, the failure to protect the two heritage-registered ‘scar trees’ emphasises the need for stronger enforcement of heritage protections, enhanced education and accountability requirements for contractors and ACT government personnel, and effective and timely engagement with First Nations representatives.
Cultural heritage protection systems and initiatives must have First Nations people at the forefront, as emphasised by the recommendations of the A Way Forward report. Ignoring First Nations voices in development has (i.e. Mount Ainslie), and will continue to lead to the destruction of important and sacred heritage sites.
In the ACT government’s response to the Inquiry, Minister for the Environment, Heritage, Homelessness and Housing Services, Rebecca Vassarotti, noted that public consultation on heritage practices took place between August and October 2023. Vassarotti further noted that a key proposed action within the consultation report included the establishment of an Aboriginal cultural heritage body to give First Nations people the lead role in determining the recognition, conservation and management of their cultural heritage, and that it would include partnership with the current representative Aboriginal organisations, RAOs, and the First Nations community to build the capacity of heritage determination and management. As of May 2025, it is unclear what action has been taken to establish this Aboriginal heritage body.
While the following sites have generated media attention, it should be noted that for First Nations peoples, all Country is sacred. As cultural land manager Tyronne Bell states, “Anywhere that shows evidence of Aboriginal habitation is considered a site of significance by Aboriginal people.”
The entire country is sacred to us…The soil provides sustenance, it’s from the soil we come.
Ngambri-Guumaal Elder Shane Mortimer
*Note: ‘Mount’ Ainslie is a contested colonial place name, and calls have been made by First Nations communities to rename it.
The ACT government and the National Capital Authority (a Commonwealth body as the site is on Crown land) have approved residential developments from Doma at Mount Ainslie, despite claims from the local Ngambri community that secret men’s business took place on the site. While a formal cultural heritage assessment did not find ‘sufficient evidence’ to classify the site as culturally significant,it is reported that neither the government nor the developer consulted registered Aboriginal organisations or local Elders about the site.
Dr Ed Wensing argues that the Mount Ainslie development highlights the “seriously flawed” legal recognition of First Nations peoples’ rights and interests in the ACT. In particular, it reveals the lack of specific provisions protecting the interests of Aboriginal custodians of the ACT in either of the planning statutes governing land use planning in the ACT. As of 2022, despite great distress from the First Nations community, construction works begun. As of May 2025, the Doma construction site is sealed off and it is reported that the developer has gone broke. It remains unclear what will happen to this site.
First Nations advocates, environmentalists, and the ACT Greens successfully pressured the NSW Government to change their plans relating to the Barton Highway duplication, fearing it would destroy culturally significant sites.
Wally Bell, chair and cultural heritage officer of the Buru Ngunawal Aboriginal Corporation said at that time:
There is no way…we want to stop the duplication itself…We just want to have a more viable way of doing it, and to try and protect our culture at the same time.
The $200 million duplication of the highway connecting Canberra to Yass and the Hume Highway began in September 2020. Mr Bell believes it will damage or destroy ring trees and a ‘spirit circle’ of trees near the ACT/NSW border which First Nations people used as landmarks and camping sites for generations. Transport NSW’s original design would have removed the ring trees altogether, however, their current plan limits the destruction to some heritage and ecological areas.
According to Kathryn McGilp, the Ginninderra Catchment Group (GCG), some minor alterations to the proposed road alignment would have saved all the cultural and ecological features. A Landcare member and engineering expert developed a feasible proposal to shift the road’s curvature, possibly east, to avoid cultural heritage sites while remaining within NSW road guidelines.
The GCG, Onerwal Land Council, the Yass Area Network of Landcare Groups, and the Friends of Grasslands started a petition in 2021 for a revised environmental assessment and review of their proposed alterations. Unfortunately, the Barton Highway Upgrade Alliance (BHUA)–Transport NSW, Seymour Whyte Constructions, and SMEC—do not want to change their design plan and will not consider the alternative.
With an only slightly amended road design proposed, Mr Bell doubted the trees would survive as they will now be positioned on a median strip between two carriageways. The carriageway would redirect run-off and moisture away from the tree-roots, while exhaust fumes would be hazardous to their health. He explained that it is difficult to protect heritage sites when groups like BHUA do not understand First Nations tangible and intangible cultural heritage. There is no ‘physical evidence’ of the spirit circle; it is intangible knowledge of the site that has been handed down for generations.
As of November 2021, the duplication was halted as Transport NSW consulted the community about the potential impact on cultural heritage. According to the Onerwal Land Council, it was agreed that the trees would be protected with a buffer zone around them as Part 1 of the Barton Highway was completed. There may be more cultural heritage to protect when Part 2 of the highway duplication construction is underway.
Namarag (meaning wattle) nature reserve is considered a special place for the Ngunnawal people as it was where their ancestors would gather, with Molonglo River once utilised as a pathway to move throughout the landscape. Ngunnawal people have maintained a tangible and intangible cultural, social, environmental, spiritual, and economic connection to these lands and waters.
In 2020, the reserve was rehabilitated from disused sewage treatment ponds and a bomb disposal range; sewerage ponds were capped and ordinance removed in a sustainable, and pollution-free way. Now, Namarag nature reserve is a public, educative space for families, events/ceremonies, and school children who can learn the history of Ngunnawal land. For the Ngunnawal people, the Namarag Reserve is an example of best practice for future development projects involving First Nations cultural heritage, where design was built around Ngunnawal culture and community, informed by and involving Ngunnawal people. (See video)
