NSW State of the Environment 2012

SoE 2012 > People and the Environment > 1.8 Aboriginal culture and heritage

People and the Environment chapter 1

1.8 Aboriginal culture and heritage

The area of public lands in New South Wales that are protected for Aboriginal cultural values has increased as have the number of culturally significant objects and places. The first major changes in 30 years were made to strengthen the Aboriginal culture and heritage provisions of the National Parks and Wildlife Act in 2010.

The NSW Government is committed to the protection and management of Aboriginal cultural heritage and providing Aboriginal people with opportunities to protect their culture and heritage and retain access to traditional lands. These commitments form part of Goal 26 in NSW 2021.

Since SoE 2009, the following Aboriginal listings have been added to the State Heritage Register: the Myall Creek Massacre and Memorial Site, Wooleybah Sawmill and Settlement, and Warangesda Aboriginal Mission and Station.

NSW indicators

Notes: Terms and symbols used above are defined in About SoE 2012 at the front of the report.

Introduction

'Heritage' is the collective environment, traditions, objects and places that we inherit from the past and preserve for the use and inspiration of future generations. 'Culture' refers to the way we relate to and understand the world – both the present and the past. Together, culture and heritage frame our understanding of the past and influence the decisions we make about which values to preserve for the future.

Aboriginal people have a holistic perspective of culture and heritage. For Aboriginal people, culture and heritage are intrinsically linked with belonging to 'Country', the term used to describe both the land and waters, including the sea, to which they have a strong cultural connection. Protection, use and access to Country are therefore central to the wellbeing of Aboriginal people. Culturally appropriate management of Country and its resources is an essential part of protecting Aboriginal culture and heritage.

Status and trends

Heritage and cultural values are protected through a suite of mechanisms that include the gazettal of Aboriginal Places, regulation by legislation, statutory registers and permit systems, government policies, programs, grants, non-statutory agreements and partnerships, and local community activities.

The heritage objects, places, structures, landscapes, movable collections and archaeological remains (collectively termed 'items') which are protected by the Heritage Act 1977 are managed and protected through their listing on registers and schedules.

The National Parks and Wildlife Act 1974 is the primary legislation that provides protection for Aboriginal cultural heritage in NSW. The Act establishes offences for harming Aboriginal objects and provides for the declaration of Aboriginal Places and Aboriginal Areas. The Act also contains provisions relating to the repatriation of Aboriginal objects and places and for joint agreements with Aboriginal communities to manage national parks and reserves.

Heritage listings

Responsibility for heritage management in NSW is largely shared between local government, State Government agencies and the Heritage Council of NSW. Local councils are responsible for managing the bulk of heritage items through listings on heritage schedules in their local environmental plans. State agencies also have a statutory requirement to prepare a Heritage and Conservation Register of assets under their care and management under section 170 of the Heritage Act. The Heritage Council, with the support of the NSW Government, is responsible for recommending to the Minister for Heritage items of state significance to be included on the State Heritage Register and the subsequent management of them.

The Australian Government manages listings (including World Heritage List properties) on the National Heritage List and Commonwealth Heritage List under the Environment Protection and Biodiversity Conservation Act 1999. Additionally, community and professional bodies, such as the National Trust, Aboriginal land councils and some professional associations (Australian Institute of Architects and Engineers Australia) also maintain heritage registers. While these have no statutory effect, they are an important record of community support for individual items.

State Heritage Register

The State Heritage Register recognises the most significant heritage places and objects across NSW. These are items of 'state heritage significance' and reflect the diversity of heritage sites in NSW. A total of 78 new items was added to the register from January 2009 to December 2011, taking the overall number of listings to 1616.

The number of additions to the register nearly doubled compared with the previous three years. This has been partly due to introduction of the Thematic Listings Program, launched in February 2009. The program provides a strategic and systematic framework for managing accessions to the register.

Since SoE 2009 (DECCW 2009a), Aboriginal listings on the State Heritage Register have been the Myall Creek Massacre and Memorial Site, Wooleybah Sawmill and Settlement, and Warangesda Aboriginal Mission and Station.

Other lists

The Australian Heritage Council manages the National Heritage List, which includes places of outstanding heritage significance to the nation. Over 100 sites were on the list in February 2012, with recent additions including the Myall Creek Massacre and Memorial Site.

Aboriginal culture and heritage management

Aboriginal culture and heritage are linked closely with the natural environment and contain traditions and assets, both tangible and intangible. The strong relationship between Aboriginal people and their lands makes culturally appropriate management of Country and its resources a critical part of protecting Aboriginal cultural values. Aboriginal cultural heritage is protected and managed through mechanisms such as Aboriginal Places, Aboriginal Areas, Conservation Agreements, Memorandums of Understanding, Joint Management Agreements and State Heritage Register listings.

Aboriginal Places

Declaration of Aboriginal Places is an important way of recognising and protecting Aboriginal culture and heritage. Under the National Parks and Wildlife Act, any land may be declared an Aboriginal Place if the area is, or was, of special significance to Aboriginal people. Aboriginal Places have tangible or intangible value to Aboriginal people and show physical evidence of Aboriginal occupation or use. However they are not evaluated against a rigid set of criteria or against other places. Declaration of an Aboriginal Place does not change the status of the land or affect ownership rights, but it is an offence to harm an Aboriginal Place. To date, 82 Aboriginal Places have been declared across NSW.

The NSW Government has developed a web-based Atlas of Aboriginal Places, which features a map of declared Aboriginal Places in NSW and information describing the significance of them to Aboriginal people and culture.

Heritage registers

Heritage registers assist the NSW Government to manage heritage information. The Aboriginal Heritage Information Management System (AHIMS) contains information on 69,600 recorded Aboriginal sites and 11,000 archaeological and Aboriginal heritage reports. AHIMS is used by government, industry, heritage professionals and Aboriginal communities to inform land-use planning, regulation and conservation management.

The Historic Heritage Information Management System (HHIMS) is a register under section 170 of the Heritage Act of all NSW heritage assets.

Joint management of parks

The creation of jointly managed national parks enables Aboriginal people to manage Country by participating in park planning and decision-making processes. To date, the NSW Government's program of Aboriginal joint management of parks is the most successful program ensuring Aboriginal people are fully involved in identifying and protecting Aboriginal cultural values on public land. Co-managed parks and reserves represent the highest proportion of public land protected for cultural values (Table 1.9).

NSW has 23 Aboriginal joint management arrangements covering around 28% of the park system from Mungo and Mutawintji national parks in the far west to Arakwal National Park and the Worimi Conservation Lands on the eastern seaboard. The NSW Government plans to negotiate several new Aboriginal Joint Management Agreements and two new Indigenous Protected Areas with Aboriginal communities over the next two years.

Over 200 Aboriginal people have been formally appointed to boards of management and committees for jointly managed parks.

Table 1.9: Area of land protected for Aboriginal cultural values

Source: NSW Office of Environment and Heritage data 2012

Notes: Areas shown are in hectares.

Pressures

A number of factors have an impact on the way heritage is protected and managed in NSW, including population and industrial growth, economic changes and socio-cultural trends. In metropolitan areas and coastal zones, population growth causes increased development which may present challenges for the protection of heritage. Conversely, population and job decline in some rural and regional areas can cause a shortage of active uses for heritage items, limit conservation capacity, and also reduce their protection.

Simplification or streamlining of planning and development processes have the inadvertent result of making it easier to inappropriately modify heritage places or fail to identify them for protection on schedules.

Mixed land tenure in NSW requires a cohesive suite of mechanisms for protecting cultural values. A particular challenge is ensuring cultural values on private land are identified so they can be protected.

A balance is required between increasing the public's awareness of, and visits to, natural and cultural sites with ensuring the preservation and protection of those sites. It is essential that heritage sites are actively managed with cultural sensitivity.

It is very important that Aboriginal culture and heritage is appropriately recognised and protected through legislation, government policies and ongoing relationships with Aboriginal people. At present, NSW remains the only jurisdiction in Australia without separate Aboriginal heritage legislation.

Responses

Established responses

The NSW Government is committed to the protection and management of Aboriginal cultural heritage and providing Aboriginal people with opportunities to protect their culture and heritage and retain access to traditional lands. These commitments form part of Goal 26 – 'Fostering opportunity and partnership with Aboriginal people' in the Government's 10-year plan, NSW 2021: A plan to make NSW number one (NSW Government 2011).

Legislative review

In 2010, the National Parks and Wildlife Act 1974 (NPW Act) was amended to strengthen its provisions for the protection of Aboriginal culture and heritage. This included the introduction of a new strict liability offence for harming or desecrating an Aboriginal object or place, a 'due diligence' defence to the strict liability offence of harming an Aboriginal object, and an increase in penalties for offences.

The 2010 amendments were the first major changes to the Aboriginal culture and heritage provisions in the NPW Act since they were enacted more than 30 years ago. They were an important contribution towards improving Aboriginal heritage protection in NSW. However, Aboriginal people in NSW continued to champion the need for a complete review of Aboriginal heritage legislation to address the needs and challenges for better protection of Aboriginal culture and heritage.

In response, the NSW Government has commenced a review of existing laws to decide what options are available for further improving protection and management of Aboriginal culture and heritage. The review and reform process included a broad consultation with Aboriginal communities, government agencies and peak stakeholders from the property, heritage, environment, industry and other sectors. The NSW Government appointed an advisory Working Party composed of individuals with industry, legal, planning and heritage expertise to coordinate the review process. The Working Party will provide options and recommendations for reform of Aboriginal heritage legislation to the Government by late 2012.

In addition to the NSW legislative review, a review by the Commonwealth Government of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 has also been under way since 2009.

Amendments to the Heritage Act 1977 were also passed by State Parliament in late 2011. The amendments included:

• reducing the number of members on the Heritage Council to nine by the removal of two government officials
• introducing extra time frames for the Heritage Council to submit recommendations to the Minister for Heritage for the listing of items on the State Heritage Register
• introducing a time frame for referral of recommendations for listing by the Minister to the Planning and Assessment Commission
• ensuring that the reasons for the Minister's decisions on listing matters are placed in the public arena.

Heritage programs

Thematic Listings Program

The State Heritage Register Thematic Listings Program 2009–10 aims to provide a balanced and credible register that accurately records the most significant places and objects in NSW and reflects the cultural richness and diversity of the state. This revised approach introduced the following four agreed priority themes to assist in filling gaps in the register and ensure adequate representation of each theme when listings are being considered:

• Aboriginal heritage – to ensure this important aspect of the state's history continues to be recognised (seven items listed)
• convicts – to acknowledge work associated with the Australian Convict World Heritage nomination (eight items)
• Governor Macquarie – to mark the bicentenary of Macquarie's tenure as NSW Governor from 1810 to 1821 (10 items)
• World Wars I and II – to acknowledge the important contribution of servicemen and women during both wars and the 70th anniversary of the beginning of WWII (17 items).

While the Thematic Listings Program was the priority, nominations for places that did not fall within the themes were also accepted. These were identified as Priority Places and a total of 36 items were listed.

Heritage Grants Program

The Heritage Grants Program, managed by the Heritage Council of NSW, supports highly valued, cared for, and well-maintained and managed heritage items of significance to NSW. The program's focus is to assist heritage owners and managers to look after their heritage items and places and maximise leverage of the successful delivery and uptake of Heritage Act and Heritage Council funding initiatives. The funding is targeted to State Heritage Register items protected under the Heritage Act or as part of Aboriginal and local government heritage management programs.

A comprehensive evaluation of the 2009–11 Grant Funding Program was completed in June 2011. Project outcomes and key performance indicators were established for program reporting and evaluation, which will be used to assess and improve future NSW Heritage Grants Program funding offers.

Aboriginal cultural values

Strengthening Aboriginal Community Wellbeing Toolkit

The NSW Government has developed a toolkit to assist Aboriginal communities to plan for a stronger future. The Strengthening Aboriginal Community Wellbeing Toolkit is a software-based support tool designed to assist community governance groups. The toolkit enables communities to assess their strengths and needs and to prioritise and set local goals to address those needs. Aboriginal community groups, government and other partners will use the toolkit to negotiate actions that help Aboriginal communities achieve their priority goals.

Repatriation of ancestral remains

The NSW Government works with Aboriginal communities to return ancestral remains and cultural material to the community. This repatriation program coordinates the collection of those cultural materials and ancestral remains held in collections by universities, museums or other institutions; identified or uncovered by other parties (such as ground works during development); and received from the public. These ancestral materials and remains are temporarily stored, while working with Aboriginal communities to return them to Country or 'keeping places' within local Aboriginal communities. In 2010–11, Aboriginal communities were assisted to repatriate 34 remains and cultural objects and 139 sets of remains and objects in 2011–12.

Grants programs for Aboriginal Country, culture and heritage projects

The NSW Government issues a number of grants to assist the management and protection of Aboriginal cultural heritage. These include:

• the Environmental Trust's Protecting Our Places Program which provides grants for Aboriginal communities to undertake environmental education, restoration and rehabilitation projects
• Aboriginal Lands Clean-up Program which funds action by local Aboriginal land councils and local councils to prevent waste from being illegally dumped on Aboriginal-owned lands and safely clean up such waste
• NSW Heritage Grants (2011–13) which provide funding for projects that conserve, promote and increase understanding of Aboriginal heritage in NSW.

Future opportunities

A better approach in acknowledging how Aboriginal people interact with and value the environment is required to ensure holistic management of Country and environmental assets.