The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), is an Act passed by the Parliament of the Commonwealth of Australia to enable the Commonwealth Government to intervene and, where necessary, preserve and protect areas and objects of particular significance to Australia's Aboriginal or Torres Strait Islander peoples from being desecrated or injured.Aboriginal and Torres Strait Islander Heritage Protection Act 1984 at AustLII. Accessed 2011-10-01

The Act has been considered ineffective to the legislation's purpose, as seen in court decisions and the minimal amendments and recommendations implemented. The minimal updates to the Act are dissimilar to the significant changes that have been made to other heritage protection acts such as the Native Title Act 1993 and the Environment Protection and Biodiversity Conservation Act 1999.

Purpose and function The Act was established as a "final resort" to heritage protection where state and territory protections were unsuccessful. As Senator Ryan stated when introducing the bill, "Where a State or Territory has no law capable of providing effective protection, or no action is being taken to give effect to that law, the Commonwealth will act in appropriate cases."Commonwealth, Parliamentary Debates, House of Representatives, 6 June 1984 ( Senator Ryan).

The Act defines "Aboriginal tradition" as:

The Federal Court of Australia has expanded the definition to require "a degree of antiquity to the traditions"Chapman v Luminis Pty Ltd (No 5) FCA 1106, 398. whilst respecting intergenerational transmission may incorporate some variation.

"Areas of significance" can be Australian land- freehold, leasehold, private, national park or crown land- across states and territories, and internal waters or territorial seas.Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 8.  An area is considered injured or desecrated if it is used or treated in a manner inconsistent with Aboriginal traditions, including if a person's presence there would be inconsistent.Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 3(2). The threat of injury or desecration must be specific; a declaration cannot be made against acts already taken, or potential acts in the future. The threat of injury or desecration also, cannot compel action such as developing a management plan.Heritage Division of Department of Sustainability, Environment, Water, Population and Communities, Introduction to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, (2010), p 9.

Aboriginal human remains can be claimed as objects of significance however the Act has a limited definition of which Aboriginal human remains can be considered of particular significance to Aboriginal traditions.

Key Cases

The Wamba Wamba case (1989) An emergency declaration for area protection was made in 1989 on a development site for a golf course and country club.Wamba Wamba Local Aboriginal Land Council and Murray River Regional Aboriginal Land Council v The Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and Murrays Downs Golf & Country Club Limited FCA 210.   Before development, in 1986, archeological evidence found the area was likely to have skeletal remains dating back 30,000 years. Development was approved in 1987 and in December 1988, human remains were found in the construction site. Those remains were reburied however more were found and left on the golf course building site.Prue Vines, "Resting in Peace? A Comparison of the Legal Control of Bodily Remains in Cemeteries and Aboriginal Burial Grounds Australia” 20 (1) Sydney Law Review 78, 1998. Aboriginal custodians requested reburial in the same site and the movement of the club house and bowling green to an alternative area. Justice Lockhart noted: "[Burial sites] are the places which Aboriginals believe are the place of the spirits waiting to be called back, and, if the spirits are disturbed, the Aboriginal people believe that they will suffer because of the failure to care for them." Despite Justice Lockhart saying "undoubted historical significance and strength of Aboriginal tradition relating to land with which this case is concerned and land nearby raise questions of political sensitivity, high emotion and spiritual, as well as material, significance", the application was dismissed. The Minister has final power in determining site significance.Heritage Division of Department of Sustainability, Environment, Water, Population and Communities, Introduction to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, (2010) p15.

Hindmarsh island (Kumarangk) Cases (1995) The area of Kumarangk or Hindmarsh island in 1995 was subject to a protection declaration which grew to national attention sparking the Hindmarsh Island bridge controversy. The site was not granted protection. Other issues around the proceedings went to federal court twice.Thomas Lincoln Chapman, Wendy Jennifer Chapman and Andrew Lincoln Chapman v the Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, Cheryl Anne Saunders and Isabella Alice Norvill and Douglas Milera FCA 1068.The Honourable Robert Tickner, Minister of Aboriginal and Torres Strait Islander Affairs, Isabella Alice Norvill and Douglas Milera v Thomas Lincoln Chapman, Wendy Jennifer Chapman, Andrew Lincoln Chapman, Graham Francis Barton, Gary Stephen Knott and Che FCA 1726 Two cases in 1998Kartinyeri v Commonwealth HCA 52.Kartinyeri v The Commonwealth HCA 22. and another in 2001Chapman v Luminis Pty Ltd (No 5) FCA 1106. attempted to dispute, or recover from, the findings but were dismissed. These cases offered a broader definition of ‘traditional’von Doussa J in Chapman v Luminis Pty Ltd (No 5) FCA 1106, paragraph 398. and outlined that the minister, in making their decision, must consider all relevant material.Black CJ in Tickner v Chapman (1995) 57 FCR 451. This relevant material includes "the views of people who would be affected adversely by a declaration and any relevant matters, such as the financial effects of a declaration."Heritage Division of Department of Sustainability, Environment, Water, Population and Communities, Introduction to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, (2014) However the protection of Aboriginal heritage is "to be given substantial weight by the Minister in exercising his or her discretion".Tickner v Chapman, FCA 1726 per French J at 30. The effect of these cases deterred Indigenous people from making applications due to confidentiality and publicity concerns.,Chapman v Luminis Pty Ltd [No 2] (includes corrigenda of 4 August 2000) FCA 1010 and was a contributing factor to the Evatt report.

Williams v Minister for the Environment and Heritage (2003) In 2003, Wiradjuri man Neville Williams applied for an emergency declaration under the Act in response to Aboriginal artefacts found during exploratory drilling, granted under a mining lease at Lake Cowal.Williams v Minister for the Environment and Heritage FCA 535. The Minister did not declare the site protected as he did not believe it met the threshold of significance. Williams sued the Minister for "failure to take into account a relevant consideration" and ‘unreasonableness. The claim of unreasonableness was unsuccessful as "a court is not entitled to strike down an administrative decision on the ground of unreasonableness simply because the judge would have decided the issue differently". However, the minister was ordered to reconsider the application. Lake Cowal is not under declared protection.

Anderson v Minister for the Environment, Heritage and the Arts (2010) In 2010, an emergency and permanent declaration application was made in response to a housing development on North Angels beach as the site was archaeologically significant, and was also the site of a massacre of Bundajalung people which occurred at Angels Beach in the nineteenth century.Anderson v Minister for the Environment, Heritage and the Arts FCA 57. The minister refused to make a declaration which led to the court case. The Anderson siblings, both  senior elders of the Numbahjing Clan of the  Bundjalung Nation, were required to show the minister "acted perversely or had no logical basis for his decision"Anderson v Minister for the Environment, Heritage and the Arts FCA 57. para 105. or lack thereof. They did not meet the threshold and the ministers’ decision was upheld and therefore the application was dismissed.Anderson v Minister for the Environment, Heritage and the Arts FCA 57. para 107.

Destruction of Juukan Gorge

In July 2020, caves of great cultural and archaeological significance in Juukan Gorge, known as the only inland site in Australia to show signs of continuous human occupation for over 46,000 years, including through the last ice age, was deliberately destroyed by mining company Rio Tinto in May 2020. The destruction occurred legally under Western Australian legislation, the Aboriginal Heritage Act 1972. After a great outcry, a bipartisan parliamentary inquiry was announced. On 9 December 2020, the inquiry published its interim report, entitled Never Again. The report "highlights the disparity in power between Indigenous peoples and industry in the protection of Indigenous heritage, and the serious failings of legislation designed to protect Indigenous heritage and promote Native Title". Seven recommendations were made, including urging the federal government to urgently review the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Other Significant cases Dates v Minister for the Environment, Heritage and the Arts casesDates v Minister for the Environment, Heritage and the Arts FCA 1156.Dates v Minister for the Environment, Heritage and the Arts (No 2) FCA 256. regarding the Alum or Bulahdelah Mountain, 2010.

Robert Tickner v Robert Bropho casesRobert Tickner v Robert Bropho (1993) 114 ALR 409.Robert Tickner v Robert Bropho (1993) 40 FCR 183. regarding the Swan Brewery, 1993.

Reviews

The Evatt Review Between October 1995 to June 1996, Elizabeth Evatt AC independently reviewed the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.Elizabeth Evatt, Parliament of Australia, ’Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.’ (Report no. 170 of 1996, July 1996). p 1-2. (Selected parts of the review) This review was requested after the Kumarangk (Hindmarsh Island) cases.Culvenor, Clare. ‘Commonwealth heritage Protection Legislation’. 5(3) Indigenous Law Bulletin 17. (2000). p 1. The report produced 58 recommendations to amend the legislation which have continued to be used as suggested amendments to the Act decades later. The motivation for review was multi-factorial:Elizabeth Evatt, Parliament of Australia, ’Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.’ (Report no. 170 of 1996, July 1996). p.11-16.

Aboriginal People did not feel in control in administering the Act. There was no process to field or negotiate further questions on cultural heritage and no commitment to ensuring Aboriginal people had access to, or management of, the sites after declarations were made.Aboriginal and Torres Strait Islander Commission, ‘Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures.’ Australian Indigenous Law Reporter 1(1) (1996). p.79.