Native title

Sacred and heritage sites

What is a sacred site?

Sacred site means a site that is sacred to Aboriginal or Torres Strait Islander people or is otherwise of significance according to Aboriginal and Torres Strait Islander tradition.

Sacred sites are given protection under federal and various State laws, often under what are described as heritage laws. Aboriginal and Torres Strait Islander heritage can be protected under those laws to varying degrees. Usually State and Territory laws automatically protect various types of areas or objects, while enabling developers to apply for a permit or certificate to allow them to proceed with activities that might affect Aboriginal and Torres Strait Islander heritage.

Northern Territory

In the Northern Territory, all places that are sacred or otherwise of significance according to Aboriginal tradition are protected under the Land Rights Act and the Northern Territory Aboriginal Sacred Sites Act 1989. Sacred sites are protected on all forms of land tenure including freehold land.

The Northern Territory Aboriginal Sacred Sites Act 1989 is complementary legislation administered by the Northern Territory and confers specific functions on the Aboriginal Areas Protection Authority that include the registration of sacred sites, enforcement and approvals for access or proposed works. The Land Rights Act contains further protections for Aboriginal land including requiring agreements for new road development and restrictions on entering Aboriginal land without a permit. This fact creates an imperative for companies exploring for minerals, planning mining operations or any other work that may disturb the landscape, to find out in advance where sacred sites are located before commencing their projects.

Under the laws in force in the Northern Territory, Aboriginal custodians have statutory rights which amount to a significant legally recognised interest in areas which fall within the definition of a 'sacred site' contained in the Land Rights Act. These rights include:

  • the right of access to such sacred sites in accordance with Aboriginal tradition regardless of the underlying land tenure (s.46)
  • the right to authorise other people (both Aboriginal and non-Aboriginal) to cross any land whether it be public or private land for the purposes of entering a sacred site (s.47)
  • the right to refuse permission for persons to enter or remain on a sacred site (s.43)
  • the right to determine the nature and extent of works (if any) that may be undertaken on or in the vicinity of a sacred site (s.20).

The Sacred Sites Act sets out clear procedures for persons wishing to carry out works in the Territory (such as mining exploration) to obtain authoritative information on the constraints (if any) imposed by the existence of sacred sites in the areas of their proposed activities. Although the Act requires the Authority to commence consultation within 60 days of receiving an application, complex projects in remote areas are likely to require significantly longer than this to obtain clearance.

Queensland

Queensland sacred sites and cultural heritage are protected under the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003, and is administered by The Department of Aboriginal and Torres Strait Islander Partnerships. Information regarding cultural heritage can be found on the Cultural Heritage Unit website.

Cultural heritage is defined as:

  • a significant Aboriginal or Torres Strait Islander area in Queensland; or
  • a significant Aboriginal or Torres Strait Islander object in Queensland; or
  • evidence of archaeological or historic significance, of Aboriginal or Torres Strait Islander occupation of an area of Queensland.

Each of the Cultural Heritage Acts provide a blanket protection for Aboriginal and Torres Strait Islander areas, recognising the important role of traditional owners in cultural heritage matters and providing systems and procedures for understanding and engaging with cultural heritage in a timely manner. The relevant Acts also identify Aboriginal and Torres Strait Islander parties who should be involved in the assessment and management of cultural heritage.

A cultural heritage database and register have been established and investors carrying out activities that may impact on Aboriginal or Torres Strait Islander cultural heritage can request information from the database through the department's online portal.

Case study

Powerlink

Powerlink works with Aboriginal parties and traditional owners to develop and implement a Cultural Heritage Management Plan (CHMP) or Agreements for Powerlink construction projects across Queensland. This can include working with traditional owners and archaeologists to identify significant areas, objects and places and developing specific cultural heritage management processes and work practices for particular areas. Recently, Powerlink has completed agreements with several traditional owners relating to works within their native title claim areas. These agreements provide a framework within which Powerlink has an established, efficient process to follow for any activities within the agreement area and that the traditional owner group is meaningfully consulted about works and actively engaged in the processes of cultural heritage management.

Western Australia

In Western Australia, important and significant Aboriginal sites are afforded blanket protection by the Aboriginal Heritage Act 1972, which is administered by the Department of Planning, Lands and Heritage. The places to which the Aboriginal Heritage Act applies include:

  • any place of importance and significance where persons of Aboriginal descent have, or appear to have, left any object, natural or artificial, used for, or made or adapted for use for, any purpose connected with the traditional cultural life of the Aboriginal people, past or present
  • any sacred, ritual or ceremonial site, which is of importance and special significance to persons of Aboriginal descent
  • any place which, in the opinion of the Committee, is or was associated with the Aboriginal people and which is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State
  • any place where objects to which this Act applies are traditionally stored, or to which, under the provisions of this Act, such objects have been taken or removed.

The Department works with Aboriginal people to promote their culture and protect and manage places and objects of significance to the Aboriginal heritage of Western Australia. Due Diligence Guidelines assist land users to understand their obligations under the Act and inform their risk-management decisions.

Information about Aboriginal sites and other heritage places is available via the Aboriginal Heritage Inquiry System.