Victoria’s cultural heritage protections are considered among the most developed in Australia. However, significant legislative gaps remain, which must be rectified to ensure First Nations peoples have comprehensive and enduring control over the protection of their cultural heritage.
The state now known as Victoria includes the lands and waters of its traditional owners, including the Gunaikurnai, Dja Dja Wurrung, Gunditjmara, Taungurung, Eastern Maar, Wurundjeri, Bunurong, Barengi Gadjin and Yorta Yorta peoples, whose deep and continuing connections to Country have protected cultural heritage for millennia. Victoria is home to many significant cultural heritage sites, including Gariwerd (the Grampians) National Park—National Heritage listed for its rock art sites—and the stretch of coastline along the Great Ocean Road, which travels through the traditional lands of the Wadawurrung people and the Eastern Maar people.
The Budj Bim Cultural Landscape in the south-west of Victoria is known for its now dormant 30,000-year-old volcano where the Gunditjmara people used the lava to create eel traps and establish the earliest living example of aquaculture in the world. Other significant heritage sites in Victoria include the Gulgurn Manja Shelter in Laharum with evidence of Jardwadjali stone tools and ochre artwork on the walls of the shelter.
Much like the rest of so-called Australia, the establishment of the settler colonial project in Victoria unleashed unprecedented levels of violence on First Nations communities and their cultural heritage, amounting to cultural genocide. Much of this violent history, as well as the fierce resistance and determination of First Nations people in Victoria, has been the subject of the Yoorrook Justice Commission. In 1851, for example, miners destroyed First Nations culturally significant sites to establish goldfields in pursuit of wealth as part of the Victorian Gold Rush. Ongoing mineral extraction, land theft and development have resulted in restricted access to cultural sites for First Nations people as well as the destruction of culturally significant landscapes, making the practice and transmission of cultural knowledge more difficult.
While cultural heritage protection processes in Victoria are often considered among the strongest, there continue to be significant frustrations, failures and limitations. For example, there is limited opportunity to prevent projects from proceeding where governments and corporations believe there is ‘uncertainty’ about the extent of First Nations cultural heritage. This undermining of First Nations self-determination and knowledge leads to devastation such as the destruction of sacred Djab Wurrung trees.
The Aboriginal Heritage Act’s (AHA) 2006 (Vic) is the main piece of legislation governing cultural heritage in Victoria. Its stated purpose is:
…to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria’ and to do so in ‘ways that are based on respect for Aboriginal knowledge and cultural and traditional practices’.
In 2016, amendments were made to AHA to recognise Aboriginal intangible heritage and introduce the Aboriginal Cultural Heritage Register, a system used to record intangible heritage. It also became an offence to use registered intangible heritage for commercial use without the consent of the registered owner. This inclusion of intangible cultural heritage is significant, with Victoria currently the only jurisdiction in Australia with legislation providing for intangible cultural heritage protection. Nonetheless, gaps remain within these processes that allow land developments to continue destroying cultural heritage sites without significant penalties or adequate consultation.
The Aboriginal Heritage Act 2006 (Vic) defines Aboriginal intangible cultural heritage in section 79B(1) and (2) as:
One obvious limitation with the definition of intangible heritage in the AHA is that it is separated from the definition of cultural heritage. This is inconsistent with the worldview of First Nations peoples for whom all heritage is linked, not just to particular lands and waters, but to First Nations spirituality and identity.
Moreover, with the current working definition of intangible cultural heritage, Traditional Owners are constantly tasked with proving the intangible value of culturally significant sites to corporate bodies who value tangible outcomes such as money or land development. Since the amendments, there have been many projects, both State and private, that have caused damage and destruction to cultural heritage sites.
In many ways, the Act is used after the horse has bolted … If there was a suitable disincentive for damage, such as financial or effective prosecution measures, much damage would not occur.
Taungurung Elder and VAHC Chairperson Mick Harding
The Traditional Owner Settlement Act 2010 (TOSA) provides for an out-of-court settlement of native title. The Act allows the government to recognise Traditional Owners and certain rights to Crown land through an alternate pathway outside the usually lengthy and costly court processes under the Native Title Act 1993 (Cth). In return for the settlement, Traditional Owners must withdraw any native title claim (under the Native Title Act) and not make any future claims through that process.
The settlement package can include:
Through TOSA, Traditional Owners can develop and enter into plans with Parks Victoria to appropriately manage parks and waters. The Act can also help empower the revitalisation and resurgence of cultural practices that enable Traditional Owners to directly care for Country, including fire management and ranger programs.
TOSA represents a small shift toward greater respect for First Nations self-determination, and an alternative to some of the limitations of native title to deliver justice and greater cultural heritage protection in Victoria. However, much more still has to be done to ensure First Nations people have the right to manage and control their cultural heritage. For example, the current overlap between the AHA and TOSA could cause confusion and administrative burdens on Traditional Owners.
The Victorian Government’s Western Highway Distribution project continues to threaten the Djab Wurrung people’s 800-year-old sacred birthing trees.
A history of dispossession and disrespect toward First Nations people has led to the Djab Wurrung community facing significant challenges in obtaining Native Title rights to the area. This has impacted their ability to be properly consulted regarding Cultural Heritage Management Plans. Owing in part to this lack of consultation, the destruction of the sacred trees was scheduled to begin in 2018. This prompted the establishment of the Djab Wurrung Protection Embassy protest at several locations along the highway’s proposed path where trees remained.
Country is who we are, country is what guides us and what grounds us in all that we do as First Nations people. This particular 12km stretch, where the expansion of a road between Melbourne and Adelaide is planned, holds a deep intimate connection for Djab Wurrung women, with birthing trees that are more than 800 years old. Thousands of generations of Djab Wurrung babies have been born in this country.
Sissy Eileen Austin
An application under the Aboriginal and Torres Strait Islander Heritage Protection Act (1984) for Commonwealth protection of six culturally significant trees reaffirmed that the trees held First Nations cultural significance. Despite this finding, the then Minister for Environment ruled in favour of the Victorian Government. In October 2020, the ‘Directions Tree’ was felled and the Djab Wurrung Protection Embassy was ambushed by Victorian Police and ultimately dismantled. Before the next tree could be destroyed, Marjorie Thorpe achieved an injunction on the project in the Supreme Court, which stopped the project’s destruction until February 2021. In 2023, a birthing tree was confirmed to have been poisoned.
As of 2025, the highway project has been halted due to staunch Djab Wurrung resistance and is said to remain on hold until a new Cultural Heritage Management Plan is prepared. The revised completion date of the project (previously 2020) will be determined after the plan is published.
The partial destruction of Djab Wurrung sacred birthing trees provides a practical example of the challenges faced by First Nations people who aren’t able to obtain Native Title rights due to historical dispossession, as well as the clear lack of free prior and informed consent processes regarding First Nations heritage. It also highlights the irreparable damage and trauma caused to First Nations communities who are unable to achieve Registered Aboriginal Parties status, further enabling heritage destruction.
Further Reading
