- NSW has the oldest legislation that manages Aboriginal cultural heritage.
- Despite multiple reviews and decades of calls for change, Aboriginal cultural heritage remains in the State’s flora and fauna legislation.
- NSW stands alone as the last jurisdiction in Australia not to have enacted separate Aboriginal cultural heritage legislation.
Aboriginal culture is an intrinsic part of the shared Australian heritage and identity. For Aboriginal people in particular, cultural heritage is a fundamental component of an individual’s and community’s collective cultural identity and wellbeing. A strong culture that is well protected and respected is inherently important to Aboriginal people – it is a source of pride and provides a sense of belonging, and it embodies a physical and spiritual connection to land and water, or what Aboriginal people often refer to as ‘Country’.
In NSW, Aboriginal cultural heritage is primarily managed and protected by the National Parks and Wildlife Act 1974 (NSW) (‘NPW Act’). The current legislation does not define Aboriginal cultural heritage, rather it refers to the need to conserve ‘Aboriginal objects’, ‘places’, and ‘features’ of significance to Aboriginal people and to foster appreciation, understanding and enjoyment of this heritage (s 2A).
Aboriginal objects are defined as any material relating to the Aboriginal habitation of NSW, including Aboriginal ancestral remains. The legislation also provides that all Aboriginal objects are the ‘property of the Crown’ (with limited exceptions). The NSW government can ‘dispose’ of Aboriginal objects that are Crown property by transferring to Aboriginal owners or Aboriginal people (s 85A) with such transference effectively ending all protection provided by the NPW Act.