Indigenous Underwater Cultural Heritage Legislation in Australia: Still Waters?

Round 1

Reviewer 1 Report

Comments and Suggestions for Authors

Thank you for the opportunity to review the manuscript. It is a great topic, the execution is clean and to the point. I have no problem recommending its publication. My only suggestion for consideration is to rethink the extent of the use of direct quotes. They take away from your voice, especially when it is a very large quote used for very little effect in the text. If you are going to quote text, it should be the bare minimum necessary to make your point, and you still need to sort of be able to justify why it was important to quote instead of paraphrasing.

Otherwise, terrific piece, and I look forward to citing it in my own work.

Author Response

Thank you for the opportunity to review the manuscript. It is a great topic, the execution is clean and to the point. I have no problem recommending its publication. My only suggestion for consideration is to rethink the extent of the use of direct quotes. They take away from your voice, especially when it is a very large quote used for very little effect in the text. If you are going to quote text, it should be the bare minimum necessary to make your point, and you still need to sort of be able to justify why it was important to quote instead of paraphrasing.

Otherwise, terrific piece, and I look forward to citing it in my own work.

 

Response

Many thanks for these positive comments.  The article is fundamentally a legal article and I suspect there is a tendency to include longer quotes of "authority" in legal writing than in other social sciences. Many of the quotes used in the article I take as necessary to establish ("prove") the proposition asserted. That said, in the attached revision I have reduced the length of some quotes. In response to the suggestions of Reviewer 2 I have also taken much of the provisions of domestic legislation out of the body of the article and located them in an Appendix which I hope will also facilitate the outcome sough by Reviewer 1 also.

Many thanks again for the [positive review

Author Response File: Author Response.docx

Reviewer 2 Report

Comments and Suggestions for Authors

The essence of this research article is both timely and significant. The research offers a critical and useful evaluation of the misalignment between Australia’s domestic legal framework for Indigenous cultural heritage—particularly in offshore and underwater contexts—and evolving international legal norms, especially those embodied in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Some points on its core value and contribution can be found below:

1. On my opinion the research bridges legal and cultural gaps, highlighting a crucial divergence: whilst international law is increasingly acknowledging Indigenous rights (territorial, cultural, participatory), national legal systems like Australia's have not kept pace – specifically in offshore areas where legal clarity is already weak. By focusing on offshore and underwater cultural heritage (UCH), the article delves into a legal and cultural "blind spot" where Indigenous voices have historically been overlooked.
2. The article successfully criticizes the existing instruments - Its critique of the 2001 UNESCO UCH Convention is particularly important. In fact, whilst the Convention is progressive in many ways, it’s accurate to say it does not sufficiently account for Indigenous perspectives or participation. The article’s argument that this makes the Convention an unsuitable basis for reform reflects a nuanced understanding of both heritage governance and Indigenous sovereignty.
3. I find this research forward-looking and reform-oriented. By offering suggestions on legislative reforms based on UNDRIP, the article does not only diagnose inconsistencies. It is a contribution in paving the way towards decolonizing underwater heritage law. This proactive angle increases the research's value not only for scholars but also for policymakers and Indigenous communities themselves. It is also showing the way towards a more participative planning ( incl. indigenous peoples) and decision-making in coastal management and Maritime spatial Planning (MSP). Its comments on the inclusion of "cultural interests" and "culturally significant areas" may be very useful for other parts of the world. 

Summing up, the article is a strong interdisciplinary intervention that combines legal analysis, cultural heritage studies, and Indigenous rights advocacy. Its greatest strength lies in recognizing that offshore spaces are not “empty” of cultural significance and that legal invisibility often means elimination. In this context, pushing for legislative reform aligned with UNDRIP’s principles of recognition, participation, and free, prior and informed consent (FPIC) is both urgent and normatively sound.

Regarding the structure and presentation of the manuscript, I would recommend a thorough review to correct a series of typos, throughout the text. Additionally, it would be helpful to move some of the detailed legal content (e.g., specific legal articles) to the Appendix. This would enhance the readability and accessibility of the main body of the text for a broader audience.

  

Author Response

The essence of this research article is both timely and significant. The research offers a critical and useful evaluation of the misalignment between Australia’s domestic legal framework for Indigenous cultural heritage—particularly in offshore and underwater contexts—and evolving international legal norms, especially those embodied in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Some points on its core value and contribution can be found below:

1. On my opinion the research bridges legal and cultural gaps, highlighting a crucial divergence: whilst international law is increasingly acknowledging Indigenous rights (territorial, cultural, participatory), national legal systems like Australia's have not kept pace – specifically in offshore areas where legal clarity is already weak. By focusing on offshore and underwater cultural heritage (UCH), the article delves into a legal and cultural "blind spot" where Indigenous voices have historically been overlooked.
2. The article successfully criticizes the existing instruments - Its critique of the 2001 UNESCO UCH Convention is particularly important. In fact, whilst the Convention is progressive in many ways, it’s accurate to say it does not sufficiently account for Indigenous perspectives or participation. The article’s argument that this makes the Convention an unsuitable basis for reform reflects a nuanced understanding of both heritage governance and Indigenous sovereignty.
3. I find this research forward-looking and reform-oriented. By offering suggestions on legislative reforms based on UNDRIP, the article does not only diagnose inconsistencies. It is a contribution in paving the way towards decolonizing underwater heritage law. This proactive angle increases the research's value not only for scholars but also for policymakers and Indigenous communities themselves. It is also showing the way towards a more participative planning ( incl. indigenous peoples) and decision-making in coastal management and Maritime spatial Planning (MSP). Its comments on the inclusion of "cultural interests" and "culturally significant areas" may be very useful for other parts of the world. 

Summing up, the article is a strong interdisciplinary intervention that combines legal analysis, cultural heritage studies, and Indigenous rights advocacy. Its greatest strength lies in recognizing that offshore spaces are not “empty” of cultural significance and that legal invisibility often means elimination. In this context, pushing for legislative reform aligned with UNDRIP’s principles of recognition, participation, and free, prior and informed consent (FPIC) is both urgent and normatively sound.

Regarding the structure and presentation of the manuscript, I would recommend a thorough review to correct a series of typos, throughout the text. Additionally, it would be helpful to move some of the detailed legal content (e.g., specific legal articles) to the Appendix. This would enhance the readability and accessibility of the main body of the text for a broader audience.

Thank you for this positive review. I certainly do hope that publication will have a positive impact on the review process. In the attached version I have attempted to identify outstanding typographical errors. I have also taken up your suggestion locating much of the reproduced domestic legislation into an Appendix. I have not included the extracted provisions of the international instruments (particularly UNDRIP) as it seemed to me that the text accompanying these provisions is more analytical of the text of the provisions are making the reader jump to the Appendix would cause frustration.

Thank you again for your positive comments

Author Response File: Author Response.docx

Reviewer 3 Report

Comments and Suggestions for Authors

It is now widely recognised that the 2001 UNESCO UCH Convention does not encompass all the areas related to what we wish to preserve that have emerged over the past 24 years. The scope of our concerns has changed and evolved. But we must understand the reasons for its creation at the time, which was to attempt to curtail treasure hunting in certain countries.

However, I disagree that the 2001 UCH Convention has excluded the Intangible UCH and Indigenous UCH; they are just not clearly mentioned.

These issues have raised doubts in several forums I have attended regarding whether the 2001 UCH Convention covers them. However, we should not attempt to alter the 2201 UCH Convention, at least not now, particularly as the number of ratifying countries continues to grow. Nevertheless, we should seek to apply a broad interpretation of cultural heritage that encompasses all these forms or types of heritage.

Regarding the national case presented in the article, the national legislation sought to be quite specific, leaving certain areas outside the law's scope, as the article illustrates. However, I’m sure that even if the present UCH Act is changed as suggested by the authors, someone else will surely identify another area the Act does not explicitly cover. It will be a never-ending story.

Also, I disagree with the authors' conclusions that the 2001 UCH Convention denies the “Traditional Owner” any role in identification or management. These issues will always depend on national laws and vary from country to country. 

A more straightforward approach would be to amend the UCH Act to use more generally accepted terms, which would avoid the issues raised by the current legislation.

Author Response

It is now widely recognised that the 2001 UNESCO UCH Convention does not encompass all the areas related to what we wish to preserve that have emerged over the past 24 years. The scope of our concerns has changed and evolved. But we must understand the reasons for its creation at the time, which was to attempt to curtail treasure hunting in certain countries.

However, I disagree that the 2001 UCH Convention has excluded the Intangible UCH and Indigenous UCH; they are just not clearly mentioned.

These issues have raised doubts in several forums I have attended regarding whether the 2001 UCH Convention covers them. However, we should not attempt to alter the 2201 UCH Convention, at least not now, particularly as the number of ratifying countries continues to grow. Nevertheless, we should seek to apply a broad interpretation of cultural heritage that encompasses all these forms or types of heritage.

Regarding the national case presented in the article, the national legislation sought to be quite specific, leaving certain areas outside the law's scope, as the article illustrates. However, I’m sure that even if the present UCH Act is changed as suggested by the authors, someone else will surely identify another area the Act does not explicitly cover. It will be a never-ending story.

Also, I disagree with the authors' conclusions that the 2001 UCH Convention denies the “Traditional Owner” any role in identification or management. These issues will always depend on national laws and vary from country to country. 

A more straightforward approach would be to amend the UCH Act to use more generally accepted terms, which would avoid the issues raised by the current legislation.

I would like to thank Reviewer 3 for their thoughtful and informed comments. However I must say as a question of instrument interpretation I simply cannot agree with the suggestion by Reviewer 3 that "the 2001 UCH Convention has [not] excluded the Intangible UCH and Indigenous UCH; they are just not clearly mentioned.

As a question of interpretation intangible IUCH is excluded unless accompanied by tangible manifestation. Similarly I cannot agree that the question of Traditional Owner involvement in the definition of UCH is a question solely for domestic institutions. As instruments (such as UNDRIP) demonstrate, Traditional Owner involvement is a necessary part of a definition process upon which domestic Institutions operate.

Similarly, and with great respect, I cannot agree with the suggestion that explicit inclusion of Indigenous UCH in domestic legislation is just one more of a 'never-ending story" of proposed additions.

Reviewer 3 proposed not specific amendments to the text of the article. The versions amended in response to the comments of Reviewers 1 and 2 is attached for the sake of completeness

Author Response File: Author Response.docx