Environment Law in the Northern Territory

Indigenous heritage

Introduction

This Fact Sheet is about protection of Indigenous heritage that is linked to land in the Northern Territory.

Indigenous heritage is protected under Northern Territory laws and under national laws.

Northern Territory laws

There are two Northern Territory laws that can protect Indigenous heritage.  These are:

  1. the Northern Territory Aboriginal Sacred Sites Act
  2. the Heritage Act 2011

The Northern Territory Aboriginal Sacred Sites Act protects Aboriginal sacred sites.  Aboriginal sacred sites are sites that are sacred to Aboriginal people or which have significance according to Aboriginal tradition.  This law creates:

  • a Register of Aboriginal sacred sites
  • a procedure for people who want to enter onto, use, or carry out works on, sacred sites or them to obtain approval from the Aboriginal Areas Protection Authority
    • criminal offences for desecrating a sacred site; using or carry on work at a sacred site and entering onto sacred sites

The Heritage Act 2011 sets up a system for assessing, declaring and protecting heritage places.  Heritage places are areas that are significant for their historical, scientific, aesthetic or social significance. All Aboriginal or Macassan archaeological places have been declared to be heritage places. These are places that relate to the past occupation of the Northern Territory by Aboriginal or Macassan people and which have been modified by the activity of those people.

Aboriginal sacred sites protected under the Northern Territory Aboriginal Sacred Sites Act are also capable of being protected as declared heritage places under the Heritage Act 2011. There is some overlap between the two laws and sites of Indigenous cultural heritage can be listed and protected under both laws.

Read our Fact Sheets on Protecting Aboriginal sacred sites and Heritage conservation under the Heritage Act 2011 for more information.

National laws

There are also two national laws that can protect Indigenous heritage. These are:

Protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 protects areas of land in Australia and in Australian waters that have particular significance in accordance with Aboriginal tradition.   Aboriginal tradition is defined as meaning the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals.

This law provides powers to the Australian Government to make special orders, called declarations, and to protect significant Aboriginal areas from desecration.  It is a criminal offence to do an act or omit to do an act that breaches a declaration about a significant Aboriginal area.

Desecration is when:

  • an area is used or treated in a manner inconsistent with Aboriginal tradition; or
  • the use or significance of the area is adversely affected by something done in, on or near to the area
  • passage through or over or entry upon an area occurs in a manner inconsistent with Aboriginal tradition

The Minister for Sustainability, Environment, Water, Population and Communities only make an emergency declaration to protect an area under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 if an Aboriginal or Torres Strait Islander person has requested it.  Applications can be made orally or in writing.  Before a declaration can be made to protect an area, the Minister for Sustainability, Environment, Water, Population and Communities must be satisfied that:

  • the area is a significant Aboriginal area (meaning there is a body of traditions, customs, observances and beliefs of Aboriginals that make the area significant)
  • there is a threat of desecration

An authorized officer may make an emergency declaration to protect significant Aboriginal areas where the area is under immediate and serious threat of desecration. To make a declaration, the authorized office must be satisfied that:

  • the area is a significant Aboriginal area (meaning there is a body of traditions, customs, observances and beliefs of Aboriginals that make the area significant)
  • the area is under serious and immediate threat of desecration
  • the desecration of the area is likely to occur before the Minister can make the declaration.

The Australian Government views its powers under Aboriginal and Torres Strait Islander Heritage Protection Act 1984 as a way to protect sites only after the Northern Territory processes have failed to do so.

The Department of Sustainability, Environment, Water, Populations and Communities website has information about Australia’s Indigenous heritage laws and contact details for the Department.

Protection under the Environment Protection and Biodiversity Conservation Act 1999

The Australian Government has powers under the Environment Protection and Biodiversity Conservation Act 1999 to protect indigenous heritage that is within:

  • declared world heritage properties
  • national heritage places
  • natural, indigenous and historic heritage places on Commonwealth land

A declared world heritage property is a property that is listed in the World Heritage List or which has been declared to be a world heritage property by the Minister for Sustainability, Environment, Water, Population and Communities.  Uluru-Kata Tjuta National Park and Kakadu National Park are both listed on the World Heritage List.  There are World Heritage Criteria used to decide whether or not property should be declared as a world heritage property.  The Department of Sustainability, Environment, Water, Populations and Communities website has information about the listing process for world heritage properties.  Australian Government approval is needed before anyone can do anything that will have, or is likely to have a significant impact on the cultural or natural heritage of a world heritage property.

National heritage places are places on the National Heritage List.  This includes natural, Indigenous and historic places that are of outstanding heritage value to the nation.  Uluru-Kata Tjuta National Park and Kakadu National Park are also listed on the National Heritage List.  Australian Government approval is needed before anyone can do anything that will have, or is likely to have a significant impact on the national heritage values of a national heritage place.

Natural, indigenous and historic places which are on Commonwealth lands and waters or under Australian Government control, and identified by the Minister for the Environment, Heritage and the Arts (the Minister) as having Commonwealth Heritage values can be included on the Commonwealth Heritage List.

There are criminal offences for taking actions which have a significant impact on these places.  The Commonwealth Government Department of Sustainability, Environment, Water, Populations and Communities is responsible for prosecuting breaches of the Environment Protection and Biodiversity Conservation Act 1999.

For more information about laws that protect Indigenous heritage visit the Commonwealth Department of Sustainability, Environment, Water, Populations and Communities website.