Culture and heritage

Regulation of Aboriginal cultural heritage

What is Aboriginal cultural heritage?

Aboriginal cultural heritage consists of places and items that are of significance to Aboriginal people because of their traditions, observances, lore, customs, beliefs and history. It provides evidence of the lives and existence of Aboriginal people before European settlement through to the present. Aboriginal cultural heritage is dynamic and may comprise physical (tangible) or non-physical (intangible) elements. It includes things made and used in traditional societies, such as stone tools, art sites and ceremonial or burial grounds. It also includes more contemporary and/or historical elements such as old mission buildings, massacre sites and cemeteries. Tangible heritage is situated in a broader cultural landscape and needs to be considered in that context and in a holistic manner.

Aboriginal cultural heritage also relates to the connection and sense of belonging that people have with the landscape and each other. It recognises that Aboriginal people understand cultural heritage and cultural practices as being part of both the past and the present and that cultural heritage is kept alive and strong by being part of everyday life.

Cultural heritage is not confined to sites; it also includes peoples' memories, storylines, ceremonies, language and 'ways of doing things' that continue to enrich local knowledge about the cultural landscape. It involves teaching and educating younger generations. It is also about learning and looking after cultural traditions and places, and passing on knowledge. It is enduring but also changing. It is ancient but also new.

Aboriginal cultural knowledge provides crucial links between the past and present and therefore represents an essential part of the identities of Aboriginal people and all Australians.

Protecting Aboriginal objects and places

The National Parks and Wildlife Act 1974 (NPW Act), administered by the Office of Environment and Heritage (OEH), is the primary legislation for the protection of some aspects of Aboriginal cultural heritage in New South Wales.

Part 6 of the NPW Act provides specific protection for Aboriginal objects and declared Aboriginal places by establishing offences of harm. See below for a definition of harm. There are a number of defences and exemptions to the offence of harming an Aboriginal object or Aboriginal place. One of the defences is that the harm was carried out under an Aboriginal Heritage Impact Permit (AHIP).

These pages will give you more information and answer questions such as:

  • What are Aboriginal objects and places?
  • How are Aboriginal objects and places protected?
  • How can you find out if there are Aboriginal objects or places on your land?
  • What is due diligence?
  • What are the requirements for investigating, assessing and reporting on Aboriginal cultural heritage?
  • What are the requirements for archaeological investigations that may be conducted without an AHIP?
  • Can Aboriginal objects be transferred to Aboriginal communities?

What are Aboriginal objects and places?

Aboriginal objects

Aboriginal objects are physical evidence of the use of an area by Aboriginal people. They can also be referred to as 'Aboriginal sites', 'relics' or 'cultural material'.

Aboriginal objects include:

  • physical objects, such as stone tools, Aboriginal-built fences and stockyards, scarred trees and the remains of fringe camps
  • material deposited on the land, such as middens
  • the ancestral remains of Aboriginal people.

Handicrafts made by Aboriginal people for sale are not 'Aboriginal objects' under the NPW Act.

Aboriginal places

The NPW Act can also protect areas of land that have no Aboriginal objects, that is, they may have no physical evidence of Aboriginal occupation or use. These areas can be declared 'Aboriginal places'.

The Minister for the Environment can declare an area to be an 'Aboriginal place' if the Minister believes that the place is or was of special significance to Aboriginal culture. An area can have spiritual, natural resource usage, historical, social, educational or other type of significance.

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How are Aboriginal objects and places protected?

The NPW Act protects Aboriginal objects and Aboriginal places in NSW. Under the NPW Act, it is an offence to do any of the following things without an exemption or defence provided for under the NPW Act (penalties apply):

  • A person must not knowingly harm or desecrate an Aboriginal object.
  • A person must not harm or desecrate an Aboriginal object or Aboriginal place (strict liability).

Harm includes destroy, deface or damage of Aboriginal object or Aboriginal Place, and in relation to an object, move the object from the land on which it has been situated.

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How can you find out if there are Aboriginal objects or places on your land?

OEH keeps a register of notified Aboriginal objects and declared Aboriginal places in NSW. The register is called the Aboriginal Heritage Information Management System (AHIMS).

You can search AHIMS to discover if an Aboriginal object has been recorded or an Aboriginal place declared on a parcel of land. AHIMS web services allow internet-based searches for information about recorded Aboriginal objects, gazetted Aboriginal places and features of significance.

Please note that surveys for Aboriginal objects have not been done in many parts of NSW. Aboriginal objects may exist on a parcel of land even though they have not been recorded in AHIMS.

If you discover something you believe should be registered as an Aboriginal object, contact the AHIMS Registrar.

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What is due diligence?

Anyone who exercises due diligence in determining that their actions will not harm Aboriginal objects has a defence against prosecution for the strict liability offence if they later harm an object.

The Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW (10798ddcop.pdf, 1.0MB) can be used by individuals or organisations who are contemplating undertaking activities which could harm Aboriginal objects. This code will provide a process whereby a reasonable determination can be made whether or not Aboriginal objects will be harmed by an activity, whether further investigation is warranted and whether the activity requires an AHIP application.

Due diligence may also be exercised by complying with industry-specific codes of practice that have been adopted under the National Parks and Wildlife Regulation 2009.

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What are the requirements for investigating, assessing, and reporting on Aboriginal cultural heritage?

Anyone proposing to carry out an activity that may harm an Aboriginal object or a declared Aboriginal place must investigate, assess and report on the harm that may be caused by that activity.

The investigation and assessment of Aboriginal cultural heritage is undertaken to explore the harm of a proposed activity on Aboriginal objects and declared Aboriginal places and to clearly set out which impacts are avoidable and which are not. Harm to significant Aboriginal objects and declared Aboriginal places should always be avoided wherever possible. Where such harm cannot be avoided, proposals that reduce the extent and severity of this harm should be developed.

An Aboriginal cultural heritage assessment report is a written report detailing the results of the assessment and recommendations for actions to be taken before, during and after an activity to manage and protect Aboriginal objects and declared Aboriginal places identified by the investigation and assessment. The Aboriginal cultural heritage assessment report will support any application made to OEH for an Aboriginal Heritage Impact Permit (AHIP) where harm cannot be avoided.

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What are the requirements for archaeological investigations that may be conducted without an AHIP?

The objectives of any archaeological investigation are to learn about past human societies through the study of material remains and historical, oral and environmental sources.
The Code of Practice for Archaeological Investigation of Aboriginal objects in NSW sets out the test excavations that can be carried out without the requirement for an AHIP and specifies the minimum standards for archaeological investigation undertaken in NSW under the National Parks and Wildlife Act 1974 (NPW Act). An Aboriginal cultural heritage assessment that requires an archaeological investigation to be undertaken must be done in accordance with the requirements of this Code.

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Can Aboriginal objects be transferred to Aboriginal communities?

Many Aboriginal communities wish to have care of Aboriginal objects which have been excavated, disturbed or moved by development activities, erosion or other processes.

The NPW Act allows the transfer of Aboriginal objects to an Aboriginal person or Aboriginal organisation for safekeeping. The person or organisation must enter into a care agreement with OEH.

A care agreement is a document that sets out the obligations of OEH and the Aboriginal person or Aboriginal organisation for the safekeeping of the transferred Aboriginal object(s). The Aboriginal person or organisation does not become the owner of the Aboriginal objects.

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Page last updated: 07 June 2013