By Teina Te Hemara
Cultural Heritage might be easy enough to recognise – most of us can name famous landmarks, artworks or monuments that have immense spiritual, religious or social significance to the cultural groups they belong to, or on whose land they sit, but what is Intangible Cultural Heritage? And how does it relate to Native Title? How is Intangible Cultural Heritage protected (or, rather, not protected) across Federal, State and Territory legislation?
What is Intangible Cultural Heritage?
Intangible cultural heritage is the traditions or living expressions that we inherit from our ancestors and pass on to our descendants. Practicing and passing on knowledge for generations is something Aboriginal and Torres Strait Islander peoples have always done and will continue to do. Intangible cultural heritage can include Song Lines, ceremonies and Dreaming stories, performing arts, oral traditions, social practices, knowledge and practices concerning nature, plants and the universe, festive events or the knowledge and skills to produce traditional crafts. It can also include languages. Cultural heritage can have both tangible (something you can touch) and intangible (like knowledge or a story about something or how you are supposed to behave) elements. It can be something that has been around for a long time or something that is new. Indigenous Cultural and Intellectual Property (ICIP) refers to the rights Indigenous peoples’ have to their cultural heritage and is based on the fundamental right to self-determination.
Some people used to think that these were separate types of heritage, but if you think of important or special physical (tangible) things or places, there is almost always intangible knowledge that goes with it. This might be something like the correct way to approach a place like a river or the knowledge and practices associated with it such as when a particular flower is in bloom it might mean there will be a lot of a certain type of fish.
Why is it important?
Our intangible cultural heritage is unique and important not just to us as Aboriginal and Torres Strait Islander peoples, but also as it forms a significant part of the cultural diversity of the world. Protecting this knowledge is vital for Indigenous health, social and economic well-being and being able to live as an Indigenous person in what is still a colonised country. Passing on knowledge has social and economic value to the group who inherits the intangible cultural heritage as well as the rest of the country and world.  It can be traditional, and it can also be new and living at the same time. It does not need to be old to be considered as cultural heritage.
An example of this importance is Indigenous knowledge of fire and caring for country. Firesticks Alliance Indigenous Corporation is an Indigenous led network who aim to ‘reinvigorate the use of cultural burning by facilitating cultural learning pathways to fire and land management’. Firesticks provides an opportunity to build on knowledge people already have on and about Country as well as to look for other ways to make use of new technology and understanding in a way that supports cultural identity and practice.
What does this have to do with Native Title?
All forms of Indigenous cultural heritage whether explicitly intangible or tangible is often not properly respected by governments and proponents as was highlighted with the Juukan Gorge caves tragedy in 2020. Damage or loss of intangible cultural heritage has implications in native title compensation claims regarding cultural loss. In Griffiths (2019), the High Court held that compensation was owed to the Ngaliwurru and Nungali peoples for loss and impact on their native title rights and interests including $1.3 million dollars for cultural loss. Compensation for cultural loss was owed for the loss or reduction of ‘traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land’. What this meant was that because of the things the government did on the Ngaliwurru and Nungali peoples’ Country, it affected their ability to do certain things like care for a particular part of Country or protect the Dreaming for it. That is an intangible loss and they were owed compensation for that loss.
A place can have both tangible and intangible aspects that contribute to its cultural significance. Intangible cultural heritage related to place may include cultural practices that:
- ‘Are part of the use of a place;
- Relate to a single place, a series of places or a large place such as a landscape or cultural route, or the setting or approach route to a place;
- Relate to a place as a whole or to particular places within a place;
- Are specific to the place, have modified the place or be modified by the place;
- Occur away from a place but be symbiotically or spiritually connected to that place’
How do we protect or preserve Intangible Cultural Heritage?
Intangible cultural heritage is protected and preserved first through practicing and passing on knowledge or expressions by the people to whom it belongs to. However, there must also be legal protections and a broader cultural shift towards respecting Indigenous cultural heritage by governments and private companies, in particular mining and other industry related proponents. Traditional Owners who hold native title are limited in available legal protections by the Native Title Act, ILUAs, government ownership of sub-surface minerals and relevant heritage laws.
Commonwealth, state and territory governments must seek true Free, Prior and Informed Consent (FPIC) in all dealings with Aboriginal and Torres Strait Islander peoples including cultural heritage. This can be through legislation, policy and a cultural norm that values all forms of cultural heritage and its interrelatedness, including that of First Nations peoples. Both old and new forms of cultural heritage must be recognised and protected according to what the relevant First Nations group decides. Education and advocacy on the significance of including intangible elements into the broader definition of cultural heritage is a necessary part of this.
IP Australia is currently looking at ways the intellectual property system can better support Indigenous peoples to protect and benefit from their Indigenous Knowledge.
Australia has not signed the UN Convention for the Safeguarding of the Intangible Cultural Heritage 2003 which is the main international instrument that promotes the safeguarding of intangible cultural heritage.
Australia has signed the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) which provides for the right of Indigenous peoples to ‘maintain, control protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions’ and that together with Indigenous peoples, States (Australia) ‘shall take effective measures to recognize and protect the exercise of these rights’. The National Native Title Council (NNTC) encourages the Commonwealth, State and Territory governments to meet the standard of rights owed to Indigenous peoples in accordance with UNDRIP to which they have voluntarily signed up to. Australia has ratified the World Heritage Convention 1972 however this does not explicitly deal with intangible heritage.
Aboriginal and Torres Strait Islander Heritage is currently inadequately protected by several national pieces of legislation including the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSHIPA), the Protection of Movable Cultural Heritage Act 1986 (Cth) and the Underwater Cultural Heritage Act 2018 (Cth). The NNTC is working with the Heritage Councils of Australia and New Zealand (HCOANZ) to encourage Australian governments to improve Indigenous cultural heritage legislation and facilitate the rights of Traditional Owners to manage and protect their cultural heritage. Two key documents have been developed: Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander heritage management in Australia, and the Best Practice Standards in Indigenous Cultural Heritage Management and Legislation, a federal policy framework.
Some forms of Indigenous Cultural Intellectual Property (ICIP) are protected under Australian law. For more information on ICIP see here.
States and Territories
Victoria: The Aboriginal Heritage Act 2006 (the Act) provides for the registration of Aboriginal intangible heritage (AIH) on the Victorian Aboriginal Heritage Register (VAHR). Victoria is the first jurisdiction in Australia to establish this type of regime. Under the Act, Aboriginal cultural heritage means Aboriginal objects, places and Ancestral Remains, while AIH means ‘the elements of living culture’. It includes traditional knowledge or cultural expressions handed down over generations and also includes any intellectual creation or innovation derived from or based on the expression or knowledge of AIH. A Registered Aboriginal Party, Traditional Owner Group or registered native title holder can apply to record details of Aboriginal Intangible Heritage on the VAHR.
Western Australia: The current Aboriginal Heritage Act 1972 (WA) does not include or refer to intangible heritage however the proposed Aboriginal Cultural Heritage Bill 2020 (WA) (the Bill) defines Aboriginal cultural heritage as: ‘the tangible and intangible elements that are important to the Aboriginal people of the State, recognised through social, spiritual, historical, scientific or aesthetic perspectives (including contemporary perspectives, as part of their traditional and living cultural heritage’. It includes an Aboriginal place, an Aboriginal object, a cultural landscape and Aboriginal ancestral remains. This legislative reform is ongoing and a number of submissions have been made about the draft Bill to the WA Government expressing concern and disappointment over the process and content of the Bill.
NSW is the only state without separate Aboriginal cultural heritage legislation. The current system comes under the National Parks and Wildlife Act 1974 (NSW). Major reform to Aboriginal Cultural Heritage is proposed through the Aboriginal Cultural Heritage Bill 2018 (NSW) with an expanded definition of Aboriginal Cultural Heritage which would include intangible aspects of cultural heritage, expanded-decision making to Aboriginal people, improved protection, conservation and management of Aboriginal cultural heritage and more confidence in the regulatory system. For further information see the New South Wales Aboriginal Land Council and NSW Heritage.
A review of the Aboriginal Cultural Heritage Act 20013 (QLD) and the Torres Strait Islander Cultural Heritage Act 2003 (QLD) (the Cultural Heritage Acts) is being undertaken in Queensland. Feedback supports the inclusion and definition of intangible heritage in the assessment and management processes, for example by adopting the definition in the UNESCO Intangible Heritage convention.
Other States and Territories – Do not refer to intangible cultural heritage
The Australia ICOMOS (International Council on Monuments and Sites) is an NGO, not-for-profit organisation of cultural heritage professionals with a mission to advance and promote national standards of cultural heritage (including intangible), engage with contemporary cultural heritage issues, have an influential voice to government and more.
 Northern Territory v Griffiths (Deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples  HCA 7 .
 Art. 31 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf
 Matthew Storey 2018, ‘Tangible Progress in the Protection of Intangible Cultural Heritage in Victoria?’, Australian Indigenous Law Review, vol. 20.
 Aboriginal Cultural Heritage Bill 2020 (WA) s. 10(1).
 Ibid. s. 10(2)(a-d).
 For example, see the submission from the NNTC, Yamatji Marlpa Aboriginal Corporation (YMAC), the Kimberley Land Council (KLC) and others available here: https://consultation.dplh.wa.gov.au/aboriginal-heritage/aboriginal-heritage-bill-2020/consultation/published_select_respondent