A deeper challenge: First nations underwater cultural heritage in Australia

What is Aboriginal cultural heritage

Aboriginal cultural heritage refers to places, objects, knowledge and traditions that are significant to our First Nations people, and which are passed down from generation to generation. Aboriginal cultural heritage is dynamic and includes both tangible and intangible expressions of culture, which are all interconnected. Tangible heritage includes physical things such as sacred sites (e.g. rock art), artefacts such as stone tools and weapons, shell middens, camp sites and fish traps, whereas intangible cultural heritage includes non-physical things such as dreaming stories, oral histories, ceremonies, dances and songs. The sea is tied to dreaming stories and song lines just like land. Marine animals like turtles, whales and dugongs often have totemic and spiritual meaning just like emus, kangaroos and crows on land. Sea Country has also been used, managed and respected for thousands of years for such things as seasonal fishing and sustainable harvesting, and our First Nations people have a deep knowledge of tides, weather, navigation and marine ecosystems.

The rich stories and incredibly deep and continuous culture of our First Nations people to the land, sea and sky of this country, are what make Australia such a unique place that should be celebrated. Our First Nations cultural heritage provides a powerful insight into their connection to Country, it also tells the story of our past, present, and future, and it is an irreplaceable part of Australia’s national cultural heritage that requires greater recognition, respect and protection.

“But how can there be cultural heritage underwater?”

It is well documented that at the coldest time of the last ice age (about 20,000 years ago), sea levels around Australia stood about 120 metres below present level, and when the last ice age began to end, a few thousand years later, huge masses of ice that had built up on the land, began melting. About 13,000 years ago, sea levels had risen to around 70 metres below present levels. One thousand years later, it had risen to about 50 metres below present.¹ Given this, and over the course of thousands of years, it is without a doubt that the first footprints on this continent by our First Nations people took place on now-submerged landscapes.

Many oral histories of our First Nations people have also corroborated their ancestors living in areas now deep underwater, below is one of them:

In the beginning, as far back as we remember, our home islands were not islands at all as they are today. They were part of a peninsula that jutted out from the mainland and we roamed freely throughout the land without having to get in a boat like we do today. Then Garnguur, the seagull woman, took her raft and dragged it back and forth across the neck of the peninsula letting the sea pour in and making our homes into islands.²

Stories recorded in Queensland by linguists working with Aboriginal groups along the coastal margin document a time when the ancestors of these people lived at the coast “where the Great Barrier Reef now stands”. The Yidindji people of the Cairns area recall a time when Fitzroy Island was part of the mainland and offshore Green Island was four times larger. The story describes several named landmarks with remembered historical-cultural associations that are now underwater. Given this oral history, it is clear that the people of this area did occupy the coast where the Great Barrier Reef now stands and that it would have comprised broad floodplains and undulating hills with a range of subsistence possibilities, bordered in most parts by steep cliffs plunging down to the narrow shore.³

These stories have parallels along every part of the Australian coast and are why it is so important to properly understand and protect our First Nations underwater cultural heritage. The importance is heightened from the increase in offshore projects where the concept of there being Aboriginal cultural heritage underwater is often misunderstood and remains inadequately protected.

Discoveries of First Nations underwater cultural heritage in Australia

In recent years, there have been increasing efforts to unlock the cultural heritage that sits off our shores and on the seabeds. Yet, despite the scale of our vast drowned cultural landscape, and the fact that First Nations cultural heritage (on land and underwater) is central to Australia’s national identity, there have been limited archaeological sites found underwater to date. This means that there are likely many waiting to be discovered.

In 2019, 14 metres off the Murujuga coastline in Western Australia, scientists discovered Australia’s first ancient Aboriginal underwater archaeological sites on the seabed. At one of the sites in Cape Bruguieres, about 270 artefacts were discovered in shallow waters to depths of 2.4 metres. They were 269 ancient stone tools and grinding stones, estimated to be approximately 9000 years old, and are considered distinct proof of a previous settlement in a now sunken region. The second site at Flying Foam Passage uncovered cultural material next to a freshwater spring, 14 metres below sea level.⁴

This discovery is now the deepest known ancient archaeological site in Australia and is likely to be just the beginning for submerged landscape archaeology in Australia, which has the potential to contribute a vast wealth of knowledge. This find demonstrates why it is critical that sites like these are protected under the UCH Act and other state-based legislation. However, as it currently stands, experts have noted that Australia has fallen behind international best practice in locating, recording and protecting submerged Indigenous cultural places.⁵

Is the Underwater Cultural Heritage Act the answer?

On 24 August 2018, the Australian Parliament passed the UCH Act which was intended to broaden the protection under previous legislation, which only applied to shipwrecks, and to also protect sunken aircraft and ‘other types of underwater cultural heritage’.

The UCH Act defines “underwater cultural heritage” to mean ‘any trace of human existence that has a cultural, historical or archaeological character and is located under water’.⁶ As such, the definition would include tangible First Nations cultural heritage evidencing previous inhabitation of now underwater areas. However, there are significant deficiencies to the protection the UCH Act provides when it comes to Aboriginal cultural heritage. Firstly, it is likely that the definition would exclude other forms of intangible cultural heritage, such as song lines, dreaming places and sacred sites.

A further deficiency in the UCH Act is that it does not provide automatic protection to underwater cultural heritage. It relies wholly on the relevant Minister declaring articles are protected subject to meeting certain criteria. The UCH Act principally operates as follows:

1. Automatic protection is provided for shipwrecks, sunken aircraft and their associated artefacts, that have been in Australian or Commonwealth waters for at least 75 years, regardless of whether their precise location is known.⁷
2. If the above is not applicable, the Minister may, by notifiable instrument, declare certain articles⁸ to be protected underwater cultural heritage if the Minister is satisfied that the article is of heritage significance.⁹
3. If underwater cultural heritage is discovered, the Minister may declare an area containing protected underwater cultural heritage to be a protected zone, however there are a number of matters that will be considered first, such as the need to protect underwater cultural heritage that is of particular national or international significance, any danger posed to the public by the underwater cultural heritage and the need to limit access to environmentally, socially or archeologically sensitive underwater cultural heritage.¹⁰

This marks a delineation from the cultural heritage protection in many pieces of state-based legislation where cultural heritage is protected automatically. For example, in Queensland, the cultural heritage legislation prescribes a duty of care to take all reasonable and practicable measures to not harm¹¹ cultural heritage. Failure to do so is an offence and lack of knowledge of the presence of the cultural heritage is not a defence.

Under the UCH Act, the requirement to apply to the Minister to obtain protection for Indigenous cultural heritage means that protection can only be made on a forward-looking basis where there is knowledge of the cultural heritage, it has been identified, and there is a political will to protect it. There is a distinct difficulty with this given, even on land, archaeological investigation can be difficult and resource intensive. This becomes harder still, when such heritage may be deep underwater and a First Nations group with connection to such heritage may have little means to provide evidence to the Minister to satisfy him or her to make a declaration.

Additionally, there is no requirement for proponents of offshore activities to engage in consultation or make agreements with First Nations groups regarding management of cultural heritage.

At this stage, there have also been no Ministerial declarations under the UCH Act pertaining to First Nations underwater cultural heritage. Therefore, whilst the UCH Act provides a framework to protect Australia’s submerged heritage, it has provided no additional protection to date.

Recent steps to address the gaps in the UCH Act

In the last few years, First Nations underwater cultural heritage has become a topic that is more commonly spoken about, albeit not yet to the attention it needs. This discussion is likely due to several reasons including a focus on offshore projects, including offshore gas and renewable energy projects as well as the installation of subsea cables, rising Indigenous advocacy and growing public awareness, and shifts in policy and archaeology. There have been three important developments worth noting:

• In 2024, the Department of Climate Change, Energy and Water released ‘Guidelines - Assessing and Managing Impacts to Underwater Cultural Heritage in Australian Waters’ (Guidelines).¹² The Guidelines are intended to address the deficiencies of the UCH Act, and to provide proponents and archaeologists with some direction and recommendations on protecting First Nations underwater cultural heritage if they intend to undertake activities underwater (for example offshore wind projects). The Guidelines provide a risk management strategy to avoid non-compliance with the UCH Act and how to undertake a risk mitigation process before commencing work - for example, engaging with First Nations groups before any development activities occur, as well as undergoing an impact assessment. However, the Guidelines are just a recommendation, and there is no requirement to do so under the UCH Act.
• In response to the decision by the Full Federal Court of Australia in the Santos and Tipakalippa case¹³, NOPSEMA, Australia’s offshore energy environmental regulator, also released guidelines¹⁴ on how to better include Traditional Owners in the process of preparing an environmental plan. These also remain unlegislated and consultation with First Nations peoples is only required where those people are deemed to hold a sufficient “interest”.

Whilst the above are small steps in the right direction to protecting our First Nations underwater cultural heritage, and upholding international human rights principles, they alone are not even remotely satisfactory, and reform is urgently needed. Just like for projects on land, the planning and development of projects offshore must also consider the very real likelihood and presence of underwater cultural heritage. Given this, projects offshore must still be undertaken in genuine partnership, and in collaboration with Traditional Owners to avoid and minimise impacts to sites of significance, and importantly to ensure principles of Free, Prior and Informed Consent (FPIC) are adhered to. If this is the case, Australia can move toward a future where projects offshore coexist harmoniously with the rich cultural heritage beneath the waves.

UNDRIP – How does it relate to First Nations underwater cultural heritage?

As discussed above, when considering First Nations cultural heritage, in particular underwater cultural heritage, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an important international instrument to understand as both are deeply interconnected. UNDRIP was adopted by the United Nations General Assembly in 2007 and endorsed by the Australian Government in 2009, and FFIC is a core principle within the framework of UNDRIP. Amongst other things, UNDRIP emphasises the rights of Indigenous peoples to preserve, protect, and promote their cultural heritage, traditions and identities. It also recognises the importance of cultural heritage as a vital component of the self-determination of Indigenous peoples. Relevantly, the Articles listed below are linked to the protection of First Nations cultural heritage:

• Article 8 - the right not to be subjected to forced assimilation or destruction of culture, and that States shall provide effective mechanisms for prevention of, and redress for any action which has the aim or effect of doing so.
• Article 11 and 12 - the right to practice, revitalise and promote their cultural traditions and customs, which amongst other things includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts.
• Article 19 – free, prior and informed consent must be given before any external entity can use their cultural heritage or make decisions that affect it.
• Article 25 and 29 – the protection of sacred lands, territories and resources which are often directly tied to First Nations cultural heritage.

In addition to UNDRIP, there is also the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention on the Protection of the Underwater Cultural Heritage, which was adopted in 2001. However, like UNDRIP, UNESCO has not yet been ratified by the Australian Government and Australia’s policy does not yet align with the convention.

Cultural Heritage, Native Title and Sea Rights

In addition to the UCH Act, it is useful to highlight that each State and Territory in Australia has its own laws to protect Aboriginal cultural heritage (including terrestrial cultural heritage). There are several consistent elements that appear across most (but not all) of these pieces of legislation which includes for example recognition of Indigenous cultural heritage, protection of cultural sites and objects, consultation with First Nations communities, legal consequences for damaging or disturbing cultural heritage and certain penalties for non-compliance.

In addition to this, the Commonwealth is also responsible for protecting First Nations heritage places that are nationally or internationally significant, or that are situated on land that is owned or managed by the Commonwealth under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Further, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Protection Act) can in theory provide some protection to underwater cultural heritage, but in practice this legislation has had minimal impact. You can read an article about this point here that Partner, Gavin Scott previously wrote.

In addition to cultural heritage and environmental protection, the Native Title Act 1993 (Cth) (NTA) also recognises the rights and interests of Aboriginal and Torres Strait Islander people in land and waters. This recognition is dependent on their ability to demonstrate a continuing connection to those areas under traditional laws and customs. The specific rights that Traditional Owners may have recognised through native title are unique to each group. However, for native title sea claims it usually includes a right to take marine resources for non-commercial purposes, such as fishing to feed your family.

Whilst Australia has many native title determinations over land (including non-exclusive rights over inland waters), there are limited determinations that recognise rights over Sea Country. The first case to recognise that native title can exist over the sea was in Commonwealth v Yarmirr¹⁵ (the Croker Island Case). In the Croker Island Case the Court determined that non-exclusive native title rights existed over 2,000 square kilometres of sea and seabed in the determination area adjoining Croker Island in Arnhem Land. Whilst the claimant’s asserted that exclusive possession rights existed over the sea, the Court held that it was not possible to recognise both the public and international rights in the area alongside the native title rights to exclusive possession as these rights were inconsistent. The Croker Island Case therefore confirmed that native title in the sea must conform with Australia’s obligations under the United Nations Convention on the Law of the Sea (UNCLOS), including maintaining freedom of navigation, allowing innocent passage and recognising international rights.

Following the landmark Croker Island Case, a group of traditional owners from the Torres Strait in Akiba¹⁶ went on to jointly claim 44,000 square kilometres of Sea Country. The High Court decided that not only did the group have native title over the claimed seas, but that they also had a right to take resources from those seas ‘for any purpose’ – including for commercial purposes. While both Akiba and the Croker Island Case have shaped the recognition (and limitations) of native title rights in marine and offshore areas under Australian law, including how they co-exist with other legal regimes including international instruments like the UNCLOS, there is a real tension and fundamental inconsistency between the international right of free passage in the territorial sea and Indigenous heritage or native title rights. This tension was acknowledged in the Croker Island Case, in particular that the two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and international rights.¹⁷ In addition to the NTA, it is worth noting that the Northern Territory’s land rights system established by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (NT Land Rights Act) is one of the oldest pieces of land rights legislation. About fifty per cent of land in the Northern Territory has been handed back to Aboriginal communities through the land rights process. In addition to handing back land, the Territory’s system lets Traditional Owners apply for what are called ‘sea closures’ where a group owns coastal land and can make an application to prevent outsiders from entering and fishing in seas within two kilometres of their land without their permission. So far there are only two sea closures.¹⁸

It is important to note that the NTA and the NT Land Rights Act, as well as state based cultural heritage legislation, are distinct from the UCH Act in terms of the protections afforded. While native title rights for example may, and should, give Traditional Owners a role in identifying, accessing and managing underwater cultural heritage, the UCH Act presently does not address this point. Therefore, while there are a number of laws across Australia that attempt to protect cultural heritage, as demonstrated in this article, the protections available for First Nations underwater cultural heritage in Australia is significantly lacking, and reform is therefore needed to ensure that best practice is adopted in accordance with International human rights principles, and our First Nations peoples underwater cultural heritage is properly recognised and protected.

Concluding statements

While the UCH Act and the Guidelines are a step in the right direction, it should be queried why First Nations cultural heritage, intangible or otherwise, is deserving of automatic protection on land, but not when sea level rises have submerged artefacts of the same nature.

If efforts are taken to learn more about these significant cultural sites and protect them, they can serve as repositories of traditional knowledge and provide insights into practices that have sustained Indigenous cultures for millennia. Preserving these underwater sites is not only a legal and ethical responsibility, but it is also a way for the nation to demonstrate a commitment to respecting and celebrating the diverse heritage that has shaped our country’s’ identity.