Cultural Heritage in NSW

[Image: Blue Mountains National Park, NSW by Jacques Bopp]

New South Wales is the most populous Australian state, with the largest Aboriginal and Torres Strait Islander population.  It also has the dubious distinction of being the starting point of the eighteenth century British government’s flawed claim to the continent that would come to be known as Australia, establishing a large-scale penal transportation system. This system was used in all colonies (except South Australia) for up to 70 years after 1788. Robert Hughes in his book The Fatal Shore argues that Governor George Arthur's attempt to exterminate the Tasmanian Aborigines could have happened only under a European administration brutalized by the penal system. 

The original inhabitants of NSW suffered the earliest and most intense colonisation. Today they own only approximately one percent of the state’s land area which means that most of their cultural heritage is found on private or public lands (NT has approx 70% under some form of ownership). 

Background

NSW is the only jurisdiction without stand-alone Aboriginal cultural heritage legislation. First Nations people have struggled to protect their heritage through a rather complex interaction of three key laws:

The 1994 Native Title legislation ushered in a new and more powerful form of First Nations land ownership than that which had been in operation in NSW since 1983. In time the NSW government needed to make various amendments to its successfully operating ALRA in order to overcome conflicts of interest between First Nations entities that already had one form of tenure but sought Native Title.

There are 3 other state planning and environment Acts that have some impact on Aboriginal and Torres Strait Islander affairs. One, the 1977 Heritage Act (NSW), combines First Nations and non-Indigenous matters. Another is the NSW Environmental Planning and Assessment Act 1979 (EPA), responsible for management and conservation of the state’s natural resources and cultural heritage (including Aboriginal heritage), facilitating ecologically sustainable development and protecting the environment.  Finally the Fisheries Management Act 1994 and other natural resource management laws impact First Nations land rights.

Timeline

This Timeline adds to the three key laws stated above. It maps in more detail the advocacy efforts of First Nations across the state over many decades and the state’s legislative responses to improve a system of recognition and protection. Also see ANTaR’s Cultural Heritage Protection Campaign page and in particular The Review. 

1969: The Aborigines Act (NSW) marked the beginning of dismantling the oppressive systems that had ruled First Nations’ lives throughout the 20th century. 

1977: NSW Aboriginal Land Council (NSW ALC) an independent unfunded body established by First Nations community representatives to lobby for a statewide land rights system (later this body was brought under the ALRA NSW).

1980: NSW Parliament Select Committee Legislative Assembly (Keane Committee) recommended a land rights system and a parallel system of local Aboriginal heritage groups.

1988-1989: a Ministerial taskforce consulted widely across the state, developed principles for cultural heritage legislation but failed to create change.

1993-1996: Aboriginal Cultural Heritage Working Group developed a Green Paper for a new cultural heritage Bill that did not receive Cabinet approval. 

1994: ALRA NSW amendment followed the National Native Title legislation to prevent potential future conflicts between parties operating under the 1983 legislation and those seeking the new ownership avenue. Native Title claims would take precedence over land rights claims.

1996: National Parks and Wildlife (NPW) Amendment.  Within the complex interactions between Native Title and ALRA NSW, this Amendment allowed significantly more lands to come under joint management between the state and First Nations groups. It appointed an Aboriginal Board of Management.

2006: Aboriginal Cultural Heritage Advisory Committee established to advise the Minister on matters related to First Nations heritage in NSW

2010: Amendment to NPW Act  that gave greater protection to Aboriginal heritage through heavier penalties and stricter liability clauses; upgraded the database, Aboriginal Heritage Information Management System (AHIMS); committed to review Aboriginal cultural heritage laws. The catalyst for this Amendment followed one of the most recent grievous examples of deliberate destruction of some well-known sites of the Biamanga National Park region sacred to the Yuin people.

2011- 2018: A series of government working parties undertook consultation, articulation of principles and draft cultural heritage legislation without success 

2020: Strategic statement on coal exploration and mining updated. A number of Aboriginal heritage sites have been saved through this update.

2021: Future of Gas exploration updated. The government claims to have cut future exploration by 77%; Review of NSW Heritage legislation April (1977) April 2021

Bill to amend NPW Act, completed but subject to much criticism.

What’s happening now?

Progress has clearly been glacially slow. The 1983 Aboriginal Land Rights Act was a substantive mechanism for delivering land justice to NSW  First Nations citizens, however determination rates are unjustly low. Of the 44,300 land claims made over available Crown lands, as of 2017, 33,261 of those were  yet to be determined by the NSW Government. Similarly since 1993, Native Title determinations have been slow and there are many Native Title claims covering half the state that await registration and determination across NSW.

In February 2021, a NSW Senate Committee recorded that in the previous year 84 permits to destroy cultural sites were approved under some form of Ministerial discretion. Throughout the previous 5 years every single Aboriginal Heritage Impact Permit (AHIP) had been approved. It is estimated that about 4 cultural sites are green lit for destruction each week. An AHIP is a statutory document which grants permission to harm Aboriginal objects or declared Aboriginal places and details conditions which must be complied with while harming these objects or places.

In her 2020 publication titled Cultural Vandalism: Regulated Destruction of Aboriginal Cultural Heritage in NSW, Janet Hunt concludes that greater awareness of the need for protection has led to, better informed, regulated harm to that heritage sanctioned by government agencies.

Shenhua Victory

In 2015, an unlikely alliance of local First Nations groups, farmers and nation-wide environmentalists formed a coalition to fight the proposed Shenhua coal mine in northern NSW. At that time the Gomeroi people had already been fighting for nine years seeking protection of approximately 55 sites of high cultural significance that lay in the pathway of the mine. 

At one of the latter stages of this legal battle the Federal government ruled in favour of the mining company.  In 2021, before any further appeals got underway, the NSW government’s sudden desire to protect prime farmland and cultural heritage sites led to the conclusion of this protracted battle. After 15 years in stubborn pursuit of a mega coal-mine, the NSW government acquiesced to local political and global economic factors with a payout of $100 million to the miners in compensation. 

Calga Aboriginal Cultural Landscape Victory

In 2015, the NSW Land and Environment Court ruled in favour of the Darkinjung Aboriginal Land Council (ALC) application to reject further expansion of local sand-mining, reasoning that:

"...environmental issues affecting a site were inseparable from Aboriginal cultural heritage."

The Council CEO noted that:

"What we've been able to do is get the court to move away from thinking about an individual site and to start to think about the cultural landscape."  

Other Sites of Concern

Evans Head Iron Gates

The Richmond Shire Council (and its predecessor prior to 2016 NSW council amalgamations) have sought residential development of this Northern Rivers site since the 1980s. This has been  despite strong community opposition, a number of legal cases against it and a $33M lawsuit brought against it by the developer (the lawsuit was later withdrawn but with no transparency as to why). The site currently meets NSW government criteria for regional residential development. 

There is another history. For the people of the Bundjalung nation it is a massacre site of 1842; a Native Title determination was made in 2013 and proclaimed in 2021.  For decades the region has also been the focus of environmental advocacy groups such as Evans Head Residents for Sustainable Development and National Parks. An independent review by the Environmental Defenders Office of the Government’s 2016 Aboriginal heritage assessment of the development site identified many inadequacies. The development site itself, surrounded on three sides by a wider First Nations cultural heritage landscape has been described thus: 

" [The] uniqueness of the survival of the complex area, people, history and mythological significance… "

Dr Gates, President  of Evans Head Residents for Sustainable Development believes that Evans Head is one of the most important cases at both State and Federal levels. It is understood that the case was to be heard by the Northern Region Planning Council in March 2022.

Awabakal Butterfly Cave

The Awabakal Butterfly Cave historically was a birthing site  for First Nations women and continues to be a living cultural meeting place. It has been recognized as a NSW site of significance ( 2013) and has been declared a sacred site by the Federal Aboriginal and Torres Strait Islander Heritage Protection Act (ATSIHPA) in 2019.  Despite these supposed state and federal protections the site continues to be threatened by housing development. The community is urgently seeking further protection.  

Plains clan of the Wonnarua people seek cultural heritage protection 2021

Since the beginning of European settlement the riches of the Hunter Valley landscapes have been relentlessly exploited firstly for agriculture and then for extractive industries. 

Frontier violence between First Nations and the settlers was not uncommon. A group of Wonnarua people are currently awaiting a decision under ATSIHPA (1984) to protect ‘hallowed’ ground surrounding the historical Ravensworth Estate from destruction via the expansion of coal mining. This area is believed to be the site of particular violence and death between settlers and the local Aboriginal people during the 1820s. 

Raising Warragamba Dam Wall  Greater Blue Mountains Region  

Since 2016, the NSW government has been pursuing investigations into a project to raise the Warragamba Dam Wall to mitigate flood damage to highly populated regions of western Sydney. Loss of precious natural and cultural heritage would be one of the outcomes of such an undertaking. The Greater Blue Mountains region is home to six traditional First Nations - Darug, Gundungurra, Wiradjuri, Wanaruah, Darkinjung and Tharawal.  It was inscribed as World Heritage in 2000 and today it is home to a vibrant community of Darug and Gundungurra descendants. 

Opposition to the government proposal has been growing. In 2014 approval was given to the Traditional Owners for an Indigenous Land Use Agreement (ILA); the cost to them was to withdraw a Native title application. In 2018 the community lodged a further  proposal for protection. In 2019 other environmental opposition groups were formed- Give A Dam and Colong Wilderness

Despite this opposition, by September 2021 the NSW Government appeared to be well advanced in the necessary assessments of this project with publication of its Environmental Impact Statement (EIS). Since then further serious criticisms about the validity of various aspects of the project have been published; from Scientific reviews, International World Heritage conventions, and from the NSW Government Select Committee hearings. The case is ongoing.

Take Action

Comprehensive reform in NSW is required. We encourage you to write to relevant MPs and Ministers, with a personal, well crafted letter to hold our politicians to account. We suggest in your correspondence with politicians that you refer to these key principles to  underpin all reform as well as advocating for action on specific Sites of concern:

  • Recognise Traditional Owners as authorities at the table at the beginning of any application for development on lands owned by First Nations communities;
  • There is a need for an overarching Commonwealth legislative framework; 
  • Reform must be based on the heritage standards already agreed;
  • Reform must adhere to relevant articles of the United Nations Declaration of Indigenous Rights (UNDRIP); and 
  • Reform must find the balance in the battle between economic development and preservation of cultural heritage. 

We suggest writing to relevant State and Federal MPs: NSW Premier (Dominic Perrottet), Minister for Aboriginal Affairs (Ben Franklin), Minister Energy and Environment (James Griffin), Opposition Leader (Chris Minns), and the Federal Environment Minister. 

Watch the videos and Sign this petition to the Federal Minister for Environment.

Draw on information from the videos to petition NSW Premier and Minister for Aboriginal Affairs to act promptly to preserve this site of truth telling.

Read the multiple pages in Give A Dam website (about Warragamba), sign petitions and write letters as directed to the relevant Ministers identified. 

Learn more

First Nations leaders urge NSW to adopt Juukan Gorge inquiry protections

NSW budget estimates hears average of four Aboriginal heritage sites per week green-lit for destruction

The right to protect sites: Indigenous heritage management in the era of native title Ch 4

A Way Forward Final Report Ch 7 A Pathway Forward 

Historic partnership to empower First Nations self-determination over cultural heritage legislation

Pilliga custodians reject gas project as Santos seeks to bypass Traditional Owners

Land rights and native title aren't the same – and the two systems could spark Indigenous conflict

See Also:

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