Indigenous Underwater Cultural Heritage Legislation in Australia: Still Waters?

Abstract

The article examines possible amendments to the Australian legislative regime regulating and protecting Indigenous cultural heritage in an offshore, including underwater, context. It suggests that there are significant reforms that are needed to bring the existing domestic legislative regime into conformity with the expectations of contemporary international law, particularly as manifested in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In reaching this conclusion, the article proceeds by examining recent Australian jurisprudence and archaeological studies, considering offshore Indigenous cultural heritage as well as the current Australian domestic legislative framework. It then proceeds to examine the relevant provisions of both UNDRIP and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (UCH Convention). The article identifies that the UCH Convention operates to ignore any legitimate role for Indigenous peoples and does not provide an appropriate foundation for legislative reform. The article concludes by suggesting the content of appropriate legislative reforms that accord with the expectations in UNDRIP.

1. Introduction

The development over the last two decades of international law, with respect to the distinct human rights of the world’s Indigenous peoples, is apparent in many contexts. These range from environmental protection [1] to intellectual property [2]. One area of note in this regard is in the management of the cultural heritage of Indigenous peoples (Indigenous cultural heritage—ICH).1 The 1972 UNESCO World Heritage Convention included no specific recognition of the role of Indigenous peoples in defining or managing their cultural heritage [3,4]. By contrast, Article 31 of the 2017 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states the following [5]:

31.1 Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

31.2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Two matters are clearly apparent from the terms of Article 31. First, it is Indigenous peoples themselves (as opposed to Governments) that have “the right to maintain, control, protect and develop their cultural heritage”. Second, the definition of cultural heritage includes both tangible and intangible aspects.

The purpose of this article is to consider one aspect of the development of international law and how it may impact the development of a particular aspect of domestic Australian law. That aspect is the protection and management of Indigenous Underwater Cultural Heritage (IUCH). The consideration of this matter in an Australian context is timely, following the May 2020 destruction of 43,000-year-old Aboriginal cultural heritage by the Rio Tinto corporation at Juukan Gorge in Western Australia.

As a result of this travesty, the Australian Commonwealth Government has embarked on a process of developing reform proposals for the current Commonwealth ICH law. As is apparent from the report of the Parliamentary Inquiry that followed the Juukan Gorge desecration, and the Commonwealth Government’s response to that report [6,7,8], the expectations of international law are a significant influence on this process [7]. At the time of writing, the fifth anniversary of the Juukan Gorge desecration is approaching, and a federal election is nearing completion. These two events may signal a concrete Government proposal in relation to ICH law reform. The position of IUCH is a little-explored aspect of this process.

Despite the potential significance of international law in the development of ICH law reform proposals in the field of underwater cultural heritage (UCH), particularly Indigenous underwater cultural heritage, the relevant international law is unclear. At one level are the provisions of UNDRIP Article 31 as set out above and other relevant provisions of UNDRIP. At another level are the terms of the 2001 UNESCO Convention on Underwater Cultural Heritage (UCH Convention) [9]. The UCH Convention (arguably) does not recognise intangible cultural heritage as cultural heritage at all. It certainly envisages no specific role for Indigenous peoples in the management of either tangible or intangible IUCH.

The purpose of this article is to explore the potential for international law to influence the reform of Australian law as it applies to IUCH. It aims specifically to consider the competing expectations under the UCH Convention and UNDRIP in the context of current Australian jurisprudence and legislative regimes.

The article will have a particular focus on two aspects:

• The ability of Traditional Owners to make decisions regarding their cultural heritage in an offshore, including underwater, context;
• The scope under existing national and international law for the legislative decision-making ability to extend to intangible aspects of Traditional Owners’ underwater cultural heritage.

The consideration of these matters will take place in three sections. The Section 2, after this introduction, identifies the broad nature of IUCH, particularly as this is discussed in recent Australian case law. This identification is a prelude to the Section 3, which contains an examination of the several pieces of legislation that create the current overall legislative management regime around IUCH. The Section 4 examines in more detail the relevant provisions of the UCH Convention and UNDRIP from the perspective of the two focus areas identified above. The purpose of this examination is to assess the relevance of each instrument in the process of Commonwealth ICH law reform. The article concludes by suggesting amendments to several pieces of Commonwealth legislation to ensure greater consistency with the provisions of UNDRIP and a more effective IUCH management regime.

The analysis at this stage is restricted to the national Australian legislative regime. It is noted that there may also be value in a comparative consideration of other domestic national regimes in this regard, but such an investigation is beyond the scope of the current inquiry.

2. Jurisprudence Regarding the Nature of IUCH

Included in this edition is an article by the Australian Traditional Owner coalition–the Sea Country Alliance. That article provides a comprehensive review of recent Australian jurisprudence regarding the nature of Traditional Owner interest in offshore waters (“Sea Country”). This article will not repeat that review in any detail.

Suffice it to note for present purposes that in Tipakalippa v NOPSEMA [10], Bromberg J of the Federal Court of Australia explored the nature of cultural, economic, and social rights of Traditional Owners in offshore areas. The conclusions reached were affirmed on appeal to the Full Federal Court of Australia [11]. Similar matters were also the subject of consideration in Munkara v Santos NA [12]. This latter case determined that a plausible assertion of cultural interests required the existence of a collective, and not merely an individual, view of the existence of such interests.

The consequence of this jurisprudence is a clear judicial identification of extensive Indigenous cultural interests across much of the Australian Exclusive Economic Zone. To understand the extent of these interests, it is useful to understand the context in which the litigation arose.

Regulations made under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS) required an applicant for an environmental approval to consult with people who may have an interest in the applicant’s area of operations or the broader “Environment that May be Affected” (EMBA) by the proposal [13].2 In Tipakalippa, the matter in contention was whether the applicant, the Santos company, had adequately or at all consulted with Mr Tipakalippa regarding his social, economic, and cultural interests that arose under traditional law and custom. Mr Tipakalippa is a Traditional Owner of an area of the Tiwi Islands located approximately 75 kms north of Darwin on the central north coast of the Northern Territory of Australia.

The idea that littoral Traditional Owners have rights in Sea Country is unremarkable in Australian jurisprudence. This point has been well established in a number of cases arising from applications under the Native Title Act 1993 (Cth) (NTA) [14]. A point of relevance that this native title jurisprudence does establish goes to the question of the nature of sovereignty asserted by Australia in its offshore waters. The point is explored by the High Court of Australia in Yarmirr, which dealt with a native title application in the Territorial Sea. One response by the Commonwealth Government to the applicants’ assertion of the existence of native title rights in offshore waters was to suggest that Australian sovereignty in the Territorial Sea was not of a character that would support the existence of a property right in the nature of native title. The High Court dismissed this suggestion [14] (59–61), determining that Australian sovereignty in offshore waters was sufficient to support the operation of the NTA [14] (76).

What is particularly notable about Tipakalippa is the geographic extent of the cultural interests that were seen as relevant. This is described [10] (at paragraphs 240–241):

(240) There are other references in the Drilling EP beyond those relied upon by Mr Tipakalippa, to sea country of cultural significance to traditional owners being located in the Ashmore Reef Marine Park, Cartier Island Marine Park and Oceanic Shoals. In relation to that, the Drilling EP states that “it is assumed waters of these parks contain significant sea country for Traditional Owners”. Maps and other material in the Drilling EP identify that the Arafura Marine Park is to the north of the NT and that each of Ashmore Reef, Cartier Island and Oceanic Shoals are to the north of the Western Australian coast.

(241) On the premise upon which this scenario is based, it is likely that NOPSEMA would have had a far wider concern extending not only to traditional owners in the NT but also into Western Australia.

The potential area of Sea Country described in this passage is depicted in the following map (reproduced in the judgement at paragraph 94), which depicts the relevant EMBA (Figure 1):

The consequence of the Tipakalippa decision, affirmed in Santos FFC, is that Traditional Owners from across the depicted EMBA may be recognised as having cultural interests. Such interests give rise to legal obligations from those proposing to undertake activities requiring statutory authorisation.

It is useful to consider some of the literature that considers the nature and origins of the cultural interests described in Tipakalippa. A useful starting point in this regard is the contribution by Nunn and Reid [15]. This important work is usefully summarised in a later contribution by Kerney et al. as follows [16] (105):

[Nunn and Reid, 2016] recorded Indigenous stories of sea level rise and coastal inundation from 21 locations around Australia. Identifying the temporal depth to Aboriginal memories of inundation, they cross reference transgenerational histories with palaeoclimatological data of postglacial inundation.

They combine ways of knowing Sea Country to produce a narrative of human experience, linked to sea level rise, that stretches back through a foreseeable 7000–18,000-Year period, and calculated ‘the minimum water depth (below the present sea level) needed for the details of the particular group of local-area stories to be true’. For each of the 21 locations this was ‘compared with the sea-level envelope for Australia’ and the ‘maximum and minimum ages for the most recent time that these details could have been observed are calculated’ (Nunn & Reid, 2016, p. 11). [They] thus dedicate effort to dating historical memory, by linking oral tradition to scientific data and temporal episodes of postglacial sea level rise, mobilising these as touchpoints for verification of narrative accuracy.

The work of Nunn and Reid in demonstrating that the origins of the “cultural interests” that formed the basis of the litigation in Tipakalippa lie in the pre-inundation physical occupation of currently submerged lands. Their research illustrates that these interests will not be restricted to the Tiwi. This is shown through the location of 21 sites investigated by Nunn and Reid and the extent of the pre-glacial land mass that was the subject of the investigation. This is depicted in Figure 1 from that article, reproduced below [15] (Figure 2).

Investigations by other researchers, of the type undertaken by Kerney et al. and by Nunn and Reid, are extensive [17,18,19].

A highly pertinent further example is the work carried out by Benjamin et al. [20]. In that investigation the authors identified inundated archaeological sites off the coast of the Dampier Peninsula (Murujuga) in the north west of Western Australia. The authors report some debate about the origins of the archaeological materials identified when they state the following [20] (9):

The Deep History of Sea Country project was the first Australian research program to record ancient submerged cultural heritage on the seabed in a marine context. Those findings elicited debate and discussion, particularly for the material found in the shallow waters just below the intertidal zone …. Those criticisms were met with a straightforward rebuttal to the assertions expressing doubts about the authenticity and age of this underwater material…The new archaeological evidence presented from the 2022 surveys further demonstrates that the archaeological landscape extends under water onto now drowned land surfaces in Murujuga.

In commenting on some scientific debate, the authors continue as follows [20] (9–10):

Another key piece of evidence that supports the interpretation of these features as water holes comes from the Indigenous knowledge holders who describe these features as part of a known Songline, which refers to the location of waterholes in the landscape as part of a complex geographic and ecological documentation of Murujuga country (Kearney et al., 2023). This case highlights the immense value that traditional and local knowledge can bring to under water cultural heritage studies. Having reconstructed these palaeo-landscapes and environments with confirmed stone artefacts therein, it is now possible to consider the archaeological implications and a direct association between the material culture and natural features.

The particular relevance of the work by Benjamin et al. [20] is to highlight the close potential connections between areas of identified cultural significance to Traditional Owners and the location of as yet unidentified archaeological materials. The work of Nunn and Reid indicates that this phenomenon may be widespread. The academic debate in the literature is continuing. Recently, Larcombe et al., 2025 [21] questioned the veracity of the dating of artefacts at Murajuga (Dampier Peninsula) in WA as early Holocene; in particular, those authors examine the geomorphological interpretation of the site and, by implication, whether the material represents a primary or secondary context. In many respects this “academic debate” in the marine archaeological community would appear reflective of similar contests in the broader cultural heritage context that go to the role of “experts” in the identification of cultural heritage.

Writing in 2010, Smith posits the notion of an Authorised Heritage Discourse (AHD), which she suggests [22] (64)

…identifies and privileges expertise over other forms of knowledge and practice in the management and curation of heritage places and objects. In particular, the AHD identifies the authority of archaeology, architecture and art history as those disciplines best suited to act as stewards of a nation’s heritage.

The same author, in an earlier piece, suggests a dual impetus behind the development of the Australian subnational state’s Aboriginal and Torres Strait Islander cultural heritage legislation of the 1970s and 1980s. These impetuses she suggests as being on the one hand, the development of archaeological processual theory that focused attention on Australian archaeological practice and the associated effort to empower professional university-trained archaeologists in the determination and management of Australian Aboriginal and Torres Strait Islander cultural heritage. The other impetus posited by Smith is the existence of a negative reaction to the Aboriginal land rights movements of the 1970s and 1980s. She argues that by legislatively determining Aboriginal and Torres Strait Islander cultural heritage only as (tangible) “archaeological material”, the theoretical foundation was laid to suggest that there no longer existed contemporary Indigenous cultural heritage. This in turn provided justification to seek to refuse to recognise Indigenous land rights on the basis that there no longer existed a contemporary “people” that could be the subject of those rights [23]. The “debate” around the relevance of the knowledge of Traditional Owners regarding the underwater cultural heritage is reminiscent of the issues identified by Smith in these works.

This debate noted that the point for current purposes is not to review or critically assess this literature. Rather, it is to illustrate two matters: First, the cultural interests which can give rise to legal responsibilities for proponents are extensive across the Australian waters. Second, there is significant evidence to suggest that these cultural interests arise from prior human habitation of these now inundated submerged lands.

In exploring this issue, it should also be noted that the purpose is not to suggest that areas of cultural importance to Traditional Owners require the identification of the tangible remnants of physical occupation to acquire some form of broader validation. However, the potential coincidence of areas of identified cultural significance and tangible remains of physical occupation is clearly of relevance to a discussion of the legal framework around IUCH. As a starting point, this relevance arises from the definition of UCH in the UCH Convention. This is contained in Article 1, which provides the following:

“Underwater cultural heritage” means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years…”

With this jurisprudential and scientific foundation established, it is necessary to consider the existing legislative regime that operates to create the regulatory regime in respect of it.

3. The Commonwealth IUCH Legislative Regime

Although the area of IUCH has had little attention until recently, there is a surprising body of Commonwealth legislation in addition to the already mentioned OPGGS and its Regulations that deals with the matter. This is set out below:

• Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
• Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
• Coastal Waters (State Powers) Act 1980 (Cth).
• Coastal Waters (Northern Territory) Powers Act 1980 (Cth).
• Environment Protection and Biodiversity Conservation Act 1999 (Cth).
• Native Title Act 1993 (Cth).
• Offshore Electricity Infrastructure Act 2021 (Cth).
• Offshore Electricity Infrastructure Regulations 2024 (Cth).
• Protection of Movable Cultural Heritage Act 1986 (Cth).
• Underwater Cultural Heritage Act 2018 (Cth).
• Underwater Cultural Heritage Rules 2018 (Cth).

The relevance of each of these pieces of legislation to the management of IUCH requires some brief description.

The Coastal Waters (State Powers) Act 1980 (Cth) and Coastal Waters (Northern Territory) Powers Act 1980 (Cth) give partial effect to the 1980 Offshore Constitutional Settlement between the Commonwealth and the states [24,25] (ss 3–4). In a relevant summary, the settlement led to Commonwealth legislation which bestowed legislative powers on the states and the Northern Territory to the three nautical mile point (measured from the lowest astronomical datum tideline or relevant baseline). These are defined as the “coastal waters of the state” (or Territory) [25] (ss 3–4).

Relevant to this discussion, the states pursuant to this grant of legislative power have the ability to extend the operation of their general Aboriginal or Torres Strait Islander cultural heritage legislation to the state coastal waters. Usually this occurs by the operation of general legislative principles [26,27].3 In Victoria, under Regulation 21 of the Aboriginal Heritage Regulations 2018 (Vic), developments on the seabed of the coastal waters are exempt from normal development approval processes. These general principles noted, a complete review of the various state and territory Indigenous cultural heritage legislation is beyond the scope of this current discussion [28]. In a similar vein, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) is Commonwealth legislation with application only in the Northern Territory [29] (ss 3 and 69). The Act has application in the Territory’s inter-tidal waters and includes provisions protecting sacred sites as defined in the legislation.

The Offshore Electricity Infrastructure Act 2021 (Cth) and associated regulations operate in respect of offshore electricity infrastructure (wind) in a similar fashion to the OPGGS considered in Tipakalippa. Like the OPGGS, matters of IUCH will constitute “relevant considerations” for administrative law purposes in determining approvals and associated consultation requirements under the legislation and its regulations. However, IUCH is not specifically identified in the regime.

The Protection of Movable Cultural Heritage Act 1986 (Cth) relates primarily to the import and export of cultural heritage materials. While such materials may have been acquired in an underwater context, the legislation is not immediately relevant to the current discussion.

As is apparent from the earlier discussion of Yarmirr, the NTA does have application to offshore waters. However, it has little effect. Yarmirr determined that native title rights in offshore waters will necessarily be subject to the public rights to fish and navigate that are a feature of the international law under which Australia’s sovereignty is asserted. The consequence is that there can be no native title right to exclude others from offshore waters [14] (76). This restricts the ability of Traditional Owners to control activities in offshore waters. Further, the procedural rights under the “future act” provisions under s 24NA of the NTA provide only for Traditional Owners to make comments on offshore development proposals. Even this limited ability to influence developments on their Sea Country is undermined by the current authority that suggests the failure to comply with these limited procedural requirements will not invalidate the “future act” [30].

The final three pieces of identified legislation, and their associated subsidiary legislation, thus comprise the substantive elements of the Australian IUCH legislative management regime and will be considered in greater detail.

3.1. Environment Protection and Biodiversity Conservation Act

In a terrestrial context, the application of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC) to matters relevant to ICH is restricted to certain contexts in proposals affecting World or National Heritage listed properties [31] (Ch. 2.3). However, its application to offshore areas is far broader. The EPBC will operate to regulate any action that may have an impact on the environment of a “Commonwealth marine area” ([31] at s 24). A Commonwealth marine area is (in summary) defined in s 24 to be a marine area outside of a 3 nm boundary and within the 200 nm Exclusive Economic Zone. This is a significant portion of the world’s oceans, amounting to over 10 million square kilometres.

In operation then, the EPBC will operate to regulate any action that has an impact on the environment of these areas. The “environment” at s 528 of the EPBC is defined as including:

(a)

Ecosystems and their constituent parts, including people and communities;

(b)

Natural and physical resources;

(c)

The qualities and characteristics of locations, places and areas;

(d)

Heritage values of places;

(e)

The social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c), or (d).

It is apparent this definition of the “environment” of a Commonwealth marine area and Commonwealth land is sufficient to include IUCH.

The requirement for authorisation under the EPBC that goes to consideration of matters of IUCH is also relevant in the exercise of administrative discretions (granting of applications and environmental approvals) under the OPGGS and Offshore Electricity Infrastructure Act 2021 (Cth).

However, the processes of approval under the EPBC are based (solely) on a ministerial determination of the impact of an action on the “environment” (and therefore any constituent IUCH) and what regulation is necessary (if any) to manage such an impact. There is, notably, no requirement for engagement with relevant Traditional Owners as an aspect of this process. This shortcoming noted, the EPBC does provide an existing legislative framework designed to ensure the consideration of the possible impact on IUCH of offshore development proposals. The author is not aware of any example where an EPBC approval has been impacted by considerations of IUCH.

3.2. Aboriginal and Torres Strait Islander Heritage Protection Act

Storey [28] (at p 11) provides a useful summary of the general operation of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHPA) [32] as follows:

The general structure of ATSIHPA is that the Minister (currently for the Environment) may receive an application (“orally or in writing”) “by or on behalf of an Aboriginal or group of Aboriginals seeking the preservation or protection of a specified area from injury or desecration”.4 A 30-day emergency declaration under s 9 can be made if the Minister is satisfied the area is indeed a significant Aboriginal area and under serious and immediate threat of injury or desecration. A potentially ongoing s 10 declaration can be made if the Minister is again satisfied the area is a significant Aboriginal area and under threat of injury or desecration and has received and considered a report going to the various matters set out in subsections (3) and (4). Contravention of the provisions of a declaration is an offence [29] (22). Declarations are disallowable by parliament [29] (15), and can only be made after consultation with the relevant state or Territory Minister [29] (13). Under s 12 a declaration can also be made regarding a significant Aboriginal object.

ATSIHPA operates in offshore areas and with respect to IUCH in the same fashion as it does in a terrestrial context. This is made clear by the definitions of “Australian waters” in s 3 to include “the sea over the continental shelf of Australia” and of “significant Aboriginal area” (defined to include Torres Strait Islanders) to include “an area of land…beneath Australian waters”.

Questions of geography aside, a notable feature of ATSIHPA is the broad cultural scope of the definitions of both significant Aboriginal area and “Aboriginal tradition” (an embedded definition within the former) [32] (at s 3). There is a similarly broad definition of “threat of injury or desecration.” The scope of the operation of these provisions can be seen in the following passage from the judgment of Robertson J in Clark v Minister for the Environment [2019] FCA 2027 [33] (147):

The breadth, and the subtlety, of the defined expression “Aboriginal tradition” is …demonstrated by the finding of the Minister… as to cultural connection rendering the Specified Area particularly significant “with a degree of antiquity, involving Aboriginal traditions, observances, customs and beliefs that are passed down from generation to generation through dreaming stories, song lines, spirituality, culture and traditional interaction with the cultural landscape comprised by, and within, the Specified Area”.

It is quite clear from this passage that, under its definitions, ATSIHPA has the scope to contemplate the protection of purely intangible manifestations of ICH. That ATSIHPA has application to intangible (and tangible) IUCH is also made clear by the Full Federal Court in Santos FFC [11] when their Honours (at 68) state:

Mr Tipakalippa’s and the Munupi clan’s interests in the EMBA and the marine resources closer to the Tiwi Islands are immediate and direct. Furthermore, they are interests of a kind well known to contemporary Australian law. Thus, interests of this kind, which arise from traditional cultural connection with the sea, without any proprietary overlay, are acknowledged in federal legislation, such as, for example, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and have been considered by the courts.

Their Honours continue as follows (at 78):

Reference to [ATSIHPA] demonstrates that by this Act the federal Parliament has expressly contemplated the protection of areas of the sea from activities harmful to the preservation of Aboriginal tradition. The Parliament has done so without requiring the existence of particular proprietary interests; rather requiring only the existence of a connection by Aboriginal tradition.

From this consideration of ATSIHPA, several matters are apparent. These are that the legislation

• Has the operational scope to provide protection and through the terms of a declaration a management structure around IUCH.
• Contains broad definitions of “significant Aboriginal [and Torres Strait Islander] area” and of “threat of harm or desecration” that are clearly potentially applicable to both tangible and intangible IUCH.
• Has decision-making structures around the issue of determination of significance and decisions, as to whether to issue a declaration, that operate to completely disempower Indigenous peoples. Further, the ability for “any” Aboriginal (or Torres Strait Islander) person to make a declaration application operates to further disempower the actual Traditional Owners of the cultural heritage in question.

These points noted, it should also be acknowledged that the reform of ATSIHPA may well provide an effective mechanism to reform current Commonwealth law as it applies to IUCH. However, similarly to the EPBC, at present, the author is not aware of any example where an ATSIHPA declaration has been granted with respect to IUCH.

3.3. Underwater Cultural Heritage Act

The history of Australian UCH legislation leading to the Underwater Cultural Heritage Act 2018 (Cth) (UCH Act) is excellently described by Viduka and Luckman [34]. For present purposes, the key operative provisions of the UCH Act may be simply stated. The definition of UCH in s 15 of the UCH Act is in identical terms to that of UCH in the UCH Convention. This definition is set out in Appendix A to this article, along with other relevant provisions of the legislation.

Under the current UCH Act, despite falling within the scope of the s 15 definition of UCH, any UCH is only automatically protected if it also falls within the subset of UCH that was within the definitional scope of protected UCH in s 16. Article 16 restricts the scope of protected UCH to vessels and associated materials. The protection under s 16 applies whether or not the location of the protected UCH is known and whether any materials are currently located underwater. Interference with protected UCH can only occur pursuant to a ministerially granted permit under s 23.

IUCH is not within the scope of s 16 (unless the UCH is associated with a “vessel”).

As IUCH constitutes UCH that is not within the definition of protected UCH, it is only protected by the Act if it contains “any trace of human existence” and is the subject of either of the following:

• A ministerial declaration pursuant to s 17: Under the current Act, (tangible) IUCH can be (but is not automatically) the subject of a s 17 declaration in relation to UCH (that is not the remains of a vessel or an aircraft). This declaration can be made in Commonwealth waters (i.e., Australian waters beyond the coastal waters of a state–s 13).
• Protected Zone declaration pursuant to s 20: If the UCH (including IUCH) was physically within the area of a “protected zone”, declared by the Minister under s 20, it would also be protected. A protected zone declaration can be made in Australian waters “outside the limits of a state”–s 20(2) (i.e., including the coastal waters of a state).

The UCH Act and its Rules set out the criteria for making each declaration. Section 22 directs the Minister to have regard to the Underwater Cultural Heritage Rules 2018 (Cth) in inter alia making a declaration under s 17. Rule 5 (2) sets out the criteria for the significance of UCH upon which a declaration is to be based. The provisions of Rule 5 (2) are set out in full in the Appendix A to this article.

Subsection 20 (3) of the UCH Act sets out the criteria for the declaration of a “protected zone”. In the relevant part, these criteria include the following:

(a)

The need to protect underwater cultural heritage that is of particular national or international significance, is rare, or is subject to an international treaty or agreement (however described);

(b)

The need to limit access to environmentally, socially, or archaeologically sensitive underwater cultural heritage;

(c)

The need to protect underwater cultural heritage that is under threat of interference, damage, destruction, or removal;

Assessed against these criteria, the IUCH (even restricted to tangible IUCH), apparent from the work of Benjamin et al. [20] and that of Nunn and Reid [15] and discussed above, to date would be clearly significant. However, there has been no protection declaration (per s 17) of IUCH or declarations (per s 23) of a protected zone on the basis of IUCH made under the UCH Act.

Notably, the UCH Act is the one piece of legislation that has been examined where considerations of UCH can arise independently of a statutory response to a development proposal. The EPBC and ATSIHPA are both “reactive” pieces of legislation in this regard.

It is apparent that the potential of the UCH Act to empower Traditional Owners to manage and protect their UCH is impacted by three matters.

• The limited definition of UCH, which arises from the terms of the UCH convention.
• The geographic limitation to the operation of the Act, which excludes the “coastal waters of a state” with respect to a s 17 declaration.
• The complete exclusion of Traditional Owners from both nomination and determination processes.

These matters noted, it is also apparent that the UCH Act has the potential to provide some protection of tangible IUCH through the s 20 zone declaration process. Further, on the basis of the connection between intangible IUCH and the traces of human existence arising in pre-inundation lands explored earlier, it is conceivable that a zone declaration could also operate to protect aspects of IUCH.

This section of the investigation has identified the key elements of the existing IUCH legislative regime. It has examined the most relevant legislation against the two focus areas of the investigation: the recognition of intangibles and the role of Traditional Owners in making decisions regarding the management of the cultural heritage.

The following section of the article moves to consider the content of the relevant international law. This examination will inform an assessment of the relevance of this body of law in informing the domestic legislative reform process. As both the investigation focus areas (intangible heritage and role of Traditional Owners) are drawn from UNDRIP Article 31, it is appropriate to commence with consideration of the status and elements of that instrument. Following this, the UCH Convention will be considered.

4. UNDRIP and the UCH Convention

4.1. UNDRIP—Status

The UNDRIP was passed by the UN General Assembly on 13 September 2007. One hundred and forty-four member States voted in favour of the resolution adopting UNDRIP, eleven abstained, and four (Australia, Canada, New Zealand, and the United States) voted against it. Since 2007, all four of the countries that voted against the resolution have reversed their positions and now officially endorse it.

As a General Assembly resolution, UNDRIP does not create binding obligations on States. This is clear from aspects of the preambular text, which states the Declaration to be “a standard of achievement to be pursued in a spirit of partnership and mutual respect”. However, UNDRIP is also considered not to create new international law but to articulate existing human rights obligations under customary international law in the specific context of Indigenous peoples [35,36,37,38]. The Commonwealth Government expressed a “commitment” in the Juukan Government Response to: “reform cultural heritage protections… within the framework of …UNDRIP…” [8]. Given this commitment, it is highly relevant to identify the provisions of UNDRIP relevant to ICH that may inform a legislative reform process.

4.2. UNDRIP—Content

The 46 articles of the UNDRIP cover a range of matters and serve to recognise and protect Indigenous peoples’ rights to cultural integrity, education, health, and political participation.

UNDRIP Articles 11, 12, 13, 14, 15, 18, 25, 31, and 32 are relevant provisions to a general right to enjoy cultural heritage. Article 40 (dispute resolution) is also of relevance. More specifically,

Article 11 deals with “the right to practise and revitalize their cultural traditions and customs”

Article 12 with “the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains”

Article 13 with “the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures…”

Article 14 with “have the right to establish and control their educational systems and institutions”.

Article 15 with “the right to the dignity and diversity of their cultures, traditions, histories and aspirations”.

Article 25 with “the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas”.

Article 31 with “the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures…”

Article 18 sets out provisions relating to Indigenous decision-making structures. These structures become central to the ability of an Indigenous people to be able to assert the collective rights, which are a feature of many of the unique rights of Indigenous peoples. The Representative Institution is also central to domestic legislative structures regarding ICH, which enables effect to be given to rights with respect to ICH. For these reasons, the terms of Article 18 are worthy of reproduction in full:

Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

A further central element of UNDRIP goes to the provisions relating to the rights to control traditional lands, territories and resources which contain (in situ) ICH. In UNDRIP, the issue of natural resources is dealt with extensively in Articles 26–28. Article 26 provides the following:

• Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
• Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
• States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27 provides for a requirement to establish a process to “adjudicate the rights of indigenous peoples pertaining to their lands territories and resources”. Such a process is expressed to require the involvement of Indigenous peoples and the recognition of Indigenous law and land tenure systems in the process of adjudication.

Finally, Article 32 deals with the management of lands and natural resources:

• Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
• States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation, or exploitation of mineral, water, or other resources.
• States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural, or spiritual impact. (Emphasis added)

From these provisions, a number of matters relevant to the current investigation arise.

• First, although there is no specific mention of Indigenous rights in offshore waters, it is clear from the references to “lands territories and resources” that the more general provisions of UNDRIP would also extend to offshore waters. This would include the Article 31 references to control of cultural heritage and Article 32 references to the need for the free, prior and informed consent (FPIC) of Indigenous peoples to developments affecting their traditional lands and resources (Traditional Owners).
• Second, the collective rights (rights of Indigenous peoples) to control of their cultural heritage and natural resources are exercised through a representative institution of the nature described in Article 18.
• Third, as noted earlier in the investigation, the references to “cultural heritage”—specifically in Article 31 and to the elements of cultural heritage in the other articles reproduced above—clearly indicate that “cultural heritage” for the purposes of UNDRIP contemplates the inclusion of intangible aspects of cultural heritage.

It is these elements of UNDRIP that are relevant for the purposes of informing domestic ICH law reform [7]. Against this context, it is appropriate to consider the provisions of the UCH Convention.

4.3. UCH Convention Outline

The UCH Convention was adopted on 2 November 2001 and entered into force on 2 January 2009. As of 27 January 2023, the UCH Convention has 72 State Parties. Australia, although prominent in drafting the Convention [34] (258), is not (yet) a party. Subsequent to the entry into force, the several state and territory governments and the Commonwealth concluded an Intergovernmental Agreement, which was the foundation for the passage of the UCH Act and intended to support Australia’s ratification of the Convention [39].

A very useful summary of the scope of the UCH Convention is provided in the Report of the Parliamentary Joint Standing Committee on Treaties (Committee) that examined the Convention in March 2023 and recommended that “binding treaty action be taken” by Australia [40] (3.128). The Committee summarised the key aspects of the UCH Conventions as follows:

The Convention on the Protection of the Underwater Cultural Heritage (UCH Convention) is the first comprehensive treaty on underwater cultural heritage (UCH). Key elements include the protection and preservation of UCH that has been underwater continuously or periodically for at least 100 years (Art 1 (1) (a)), preferably in situ (in the original place) (Art 2 (5)), including through the cooperation between States Parties (Art 19). The UCH Convention encourages States Parties to sign up to bilateral, regional, or multilateral agreements on UCH and adopt rules and regulations to ensure its protection (Art 6 (1)). The UCH Convention contains provisions relating to public awareness of UCH, (Art 20) education (See for example Art 18 (4), 22 (1)), research (See for example Art 22 (1)), training in underwater archaeology (Art 21), and the exchange of technology (Art 21). Further, the UCH Convention contains an Annex of Rules concerning activities directed at UCH (Annex Rules)

[40] (3.1).5

In broad terms, the UCH Convention imposes obligations and creates powers in state parties to protect UCH in respect of activities directed towards the UCH (for example archaeological excavation—see Arts 10–12) or that may incidentally affect UCH (for example undersea activities—see Art 5). One feature of the UCH Convention is that it clarifies the international legal position of states to undertake these activities in areas beyond a state’s (12 nautical miles) territorial sea [40] (3.20). The obligation to undertake these activities is indicated but not clarified in the United Nations Convention on the Law of the Sea (UNCLOS) [41]. Article 149 of UNCLOS simply provides the following:

All objects of an archaeological and historical nature found in the Area shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the state or country of origin, or the state of cultural origin, or the state of historical and archaeological origin.

No guidance is provided on the implementation of the provision. The UCH convention is seen as an attempt to overcome this deficiency [42] (7).

Article 12 (6) of the UCH Convention, dealing with activities directed towards UCH, warrants particular attention. The provision states the following:

In coordinating consultations, taking measures, conducting preliminary research, and/or issuing authorizations pursuant to this Article, the Coordinating State shall act for the benefit of humanity as a whole, on behalf of all States Parties. Particular regard shall be paid to the preferential rights of States of cultural, historical or archaeological origin in respect of the underwater cultural heritage concerned.

Significant, of course, is the privileged position of states and “humanity as a whole”—but not Indigenous peoples. The provision is an appropriate segue to a broader consideration of the UCH Convention.

4.4. UCH Convention Consideration

Some Indigenous perspectives have been recently brought to the consideration of the UCH Convention by Perez-Alvaro [43]. In this article, the author explores Indigenous perspectives on the definitions of culture and heritage. She notes (potential) distinctions between historical and cultural value. She notes in particular the absence of these perspectives from various international instruments—including the UCH Convention.

Perez-Alvaro specifically explores the issue of intangible cultural heritage and underwater cultural heritage in the context of the UCH convention. In large part, however, this exploration is focused on the intangible aspects of (tangible) UCH—for example, shipwrecks of trans-Atlantic slave ships. Perhaps surprisingly, there is one reference to UNDRIP but no consideration of its UCH relevant provisions.

Similarly, Nishikawa [44], writing in 2021 with a focus on the Asia Pacific region, has some limited consideration of the intangible aspects of tangible UCH, but no consideration of Indigenous peoples in this respect.

A notable feature of the UCH convention is that there is no specification of the process or authority behind the identification of what particular matter constitutes (underwater) “cultural heritage”. The issue is central to much academic and practical consideration of cultural heritage regimes generally [45,46,47]. The lack of definition in the UCH Convention was specifically explored by Forrest, who concluded the following:

While the definition of what is to be protected lacks some clarity, and profers the possibility of introducing a significance requirement in some States’ interpretations, it generally provides a sufficiently wide net to catch the most of what is regarded as archaeologically and historically valuable that is found beneath the oceans

[42] (10).

The question that Forrest does not specifically address is who is it that regards the UCH Convention definition as “sufficiently broad” and, relatedly, why is consideration restricted to archaeologically and historically valuable materials?

Beyond the references identified above, this issue does not appear to be explored in the relevant literature considering the UCH Convention. The confidence expressed by Forrest may not be shared by Traditional Owners of both tangible and intangible UCH. There are two fundamental deficiencies in the UCH Convention in this regard. First is the attempt to exclude intangible UCH from the contemplation of the UCH Convention. The second is that the state is the authority vested with the exclusive ability to determine what is, and is not, UCH. This is clear from the overall structure of the convention, but particularly from provisions such as Article 12(6) above. The role of the state extends to determining what actions (within the scope of the obligations specified in the UCH Convention) are to be taken to protect the UCH so denominated.

In this regard, the UCH Convention represents a clear example of the “Authorised Heritage Discourse” (AHD) described by Smith [45]. As in Smith’s AHD model, the authority to determine what is cultural heritage and what steps (if any) should be taken to protect it is the state, informed by the advice of the state-appointed experts—historians and archaeologists.

In this regard Perez-Alvaro notes the following:

…the issue of whether the underwater cultural heritage of Indigenous peoples should be included in the draft was raised, particularly by Australia since, for this country, issues of underwater cultural heritage involve Aboriginal subaquatic archaeology. However, the Convention finally did not include any mention to their heritage

[43] (31).

As discussed earlier, in fact, “Aboriginal subaquatic archaeology” would potentially satisfy the definition of UCH in the Convention. However, the perception of Perez-Alvaro that IUCH was excluded from the UCH Convention would seem to reflect the practical reality.

There is, then, a sharp disjuncture between the terms and structure of the UCH Convention when contrasted with that of UNDRIP. The question is then posed as to whether the UCH Convention can play a useful role in the reform of domestic Commonwealth ICH law. It is this question that is addressed in the conclusion to this article.

5. Conclusions

To summarise the findings of this article before stating the final propositions,

• IUCH is manifest around the Australian continent in both tangible and intangible forms. There is archaeological evidence to suggest that often (but not necessarily always) intangible IUCH is co-extant with areas of pre-inundation human habitation that are likely to also contain elements of tangible ICH.
• The connection between Traditional Owners and their tangible and intangible IUCH is recognised in Australian jurisprudence as giving rise to rights recognised at law.
• Existing Commonwealth legislation, through the EPBC, ATSIHPA and the UCH Act, can operate to protect IUCH. In the case of the UCH Act, this is restricted to tangible IUCH. However, both the EPBC and ATSIHPA are reactive legislation, in the sense that protection only arises in response to a development proposal.
• None of the Australian legislation identified satisfies expectations contained within UNDRIP regarding the ability of Traditional Owners, through their representative institutions, to determine the identity of and act to protect and manage their cultural heritage.
• Perhaps because of this, none of the key pieces of legislation considered has been (reported to be) used to protect IUCH.
• The UCH Convention does have potential application to tangible IUCH but similarly denies Traditional Owners any role in the identification or management of their UCH.

With these findings in mind, it remains to consider the most appropriate reform to the existing domestic ICH legislative regime.

Noting the different roles of the EPBC and ATSIHPA, it will be assumed that it is desirable not to integrate general ICH concerns within the EPBC.6 On this basis, a first reform is to introduce amendments to both pieces of legislation to incorporate a role for the relevant (UNDRIP Article 18) Traditional Owner representative institution to identify and determine7 the management of ICH, including IUCH. With this reform included, both pieces of legislation can play an important role in reactive approaches to threats to ICH, including IUCH.

This does not mean there is no role for a reformed UCH Act. The UCH Act, particularly through the s 20 “zone” declaration procedure, can play an important role in the proactive protection of IUCH. To do these reforms would be necessary in respect of the role of Traditional Owner representative institutions as outlined above. It would also be necessary, at least in the specific context of IUCH, to amend the definition of UCH to include contemplation of intangible heritage. The EPBC and ATSIHPA provide examples of legislative drafting to achieve this.

Proposals to reform Australian ICH law have been the subject of public debate since the “Evatt Review” in 1996 [48,49]. None has yet been successful. It is only to be hoped that with the development of the status of Indigenous peoples in international law, and the memory of the travesty at Juukan Gorge still in the public consciousness, the next twelve months may see this long overdue reform take place with respect to both terrestrial and maritime Indigenous Cultural Heritage.