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Environment: The legal implications of Australia’s latest World Heritage site

Environment: The legal implications of Australia’s latest World Heritage site

By Andrew Beatty and Tim Unsworth

Environment Environmental Protection 

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The recognition of Budj Bim as a world heritage site symbolises the increasing recognition of the connection of Indigenous people and the landscape.

Snapshot
  • The Budj Bim landscape is the first site in Australia to be inscribed on the World Heritage List exclusively for its testament to Indigenous cultural heritage.
  • The listing of an entire landscape, rather than a specific physical feature, demonstrates a broader movement towards recognition of the importance of preserving Indigenous cultural heritage.
  • The inscription of Budj Bim begins to provide a solution to the limitations of the legal system in recognising Indigenous heritage.

The Budj Bim landscape is located on the South Western coast of Victoria and on 19 July 2019 was the first site in Australia to be inscribed on the World Heritage List exclusively for its testament to Indigenous cultural heritage.

The Budj Bim landscape consists of three distinct sections of an expansive aquifer system formed by manipulation of the grooves left by the lava flows of an ancient volcano. The Gunditjmara people have, for the past 6600 years, used rocks to modify the volcanic landscape and used the site to cultivate short-finned eels. This surplus of food allowed the Gunditjmara to live permanently in stone huts on the landscape and trade with local tribes.

To gain World Heritage status, sites must be of outstanding universal value and meet at least one of the 10 selection criteria specified by the World Heritage Committee. Budj Bim was accepted under criteria (iii), being “to bear a unique or at least exceptional testimony to a cultural tradition or to a civilisation which is living or which has disappeared” and (v), “to be an outstanding example of a traditional human settlement representative of a culture, or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change”.

As reflected in the selection criteria, Budj Bim has not been selected because of its natural beauty or spectacular landscape, as Australians have come to expect from a World Heritage listed site. Rather, it is of world heritage significance exclusively because of the long and ongoing interrelationship between the Gunditjmara people and this landscape, symbolising UNESCO’s increasing recognition of the connection of Indigenous people to colonised land. Budj Bim is distinguished from other heritage listed sites in Australia which are also of significance to Indigenous peoples, such as Kakadu National Park and Uluru-Kata Tjuta, because these sites were nominated primarily for their exceptional natural features, the existence and cultural heritage of Indigenous people within the landscape being a subsidiary concern.

Challenging the colonial narrative

The recognition of Budj Bim challenges the colonial narrative that First Australians were nomadic hunter-gatherers. The aquifers were formed as a feat of engineering, demonstrating an innovative manipulation of the natural landscape. Tae Rak (known as Lake Condah) was created from cooled lava flowing from nearby Budj Bim. The Gunditjmara people placed rocks in and around the lake, allowing them to control the water flow. This allowed them to trap, store and harvest kooyang (short-finned eel).¹ Increasing understanding of these traditions and practices reveals that the Gunditjmara resemble a small-scale agricultural society, adept at manipulating the natural landscape and domesticating native plant species.

Further, approximately 300 stone houses have been documented within the Budj Bim landscape, concentrated into clusters, indicating the inhabitants lived within communities. This is part of a growing recognition that Western assumptions of Indigenous culture are incorrect. The doctrine of terra nullius was recognised as a legal fiction by the High Court in the seminal Mabo decision.² Despite this, however, Australia has been remarkably slow to understand Indigenous heritage. This is likely due to the politicisation of the issue, and the culture wars that occurred in the 1990s that saw people wishing to include Indigenous perspectives in national history labelled as “black armband historians”. The recognition of Budj Bim has the potential to change people’s perceptions of how people lived in this country before colonisation.

Legal protections and limitations

The inscription of Budj Bim demonstrates how landscapes that embody the stories of the first Australians warrant legal protection.

This begins to provide a solution to the limitations of the legal system in recognising Indigenous heritage. Australian property law is private ownership-centric and a heritage listing creates a duty not to harm that must be considered during the development application process.

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) states that: a person must not take an action that impacts the heritage values of a declared World Heritage property (ss12-15A), and it is an offence to take an action that does or will significantly impact the heritage values of a listed property, unless the relevant approvals have been obtained.

The protection ostensibly offered by the EPBC Act was considered in Booth v Bosworth [2001] FCA 1453, where an injunction was granted to prevent the owners of a lychee farm, located near the World Heritage Queensland Wet Tropics area, from operating electric fences intended to electrocute flying foxes, including the now endangered spectacled flying fox. Evidence before the Court suggested that roughly 20 per cent of the female population of spectacled flying foxes were killed by this electric grid during the 2000-2001 lychee season. The region was listed for reasons including the high level of diversity of flora and fauna, and the importance of those species in evolutionary biology. The harm to the spectacled flying fox was considered to significantly impact on the world heritage values of the region. (Similarly, the 1982 world heritage listing of the Tasmanian Wilderness for its natural and cultural heritage values provided the basis for federal legislation that prevented the construction of the Franklin dam.)

There are limitations to the protection provided by the EPBC Act due to the historically narrow interpretation of what constitutes “heritage values”. The older interpretations of cultural heritage in Australia revolved around European architecture – its significance measured by either its relative age or the person or institution that occupied it. For instance, prior to Budj Bim, the only Australian sites inscribed on the World Heritage List exclusively for their cultural heritage value, were the Royal Exhibition Building and Carlton Gardens, Sydney Opera House and Australian convict sites. Due to the object-focused nature of heritage law inherited from England, landscapes were not considered significant within the existing framework of heritage assessment.

For legal purposes, the heritage values of a site are the criteria for which they were nominated and accepted, which was typically conceptualised from within this Eurocentric lens. When assessing the impacts of a proposed development on heritage values of a site, the decision-making process only targets the impacts on the prescribed heritage values. Consequently, the legal definition of the site is critical, and if intangible heritage significance is not included in the listed criteria it may be overlooked.

Even World Heritage protection has its limitations 

The Jabiluka uranium mine assessment process shows how an inadequate understanding of Indigenous culture may result in a failure to protect the heritage significance of even a UNESCO listed site. The Jabiluka area is located within the world heritage listed Kakadu National Park in the Northern Territory (NT). Kakadu was listed in 1981 for its outstanding natural features as well as its cultural heritage values. A 42-year mining lease for Jabiluka was granted by the NT government in 1982. In 1997, following a review of the new proponent’s environmental impact statement (EIS), federal approval was granted as the Minister considered that the EIS addressed the protection of world heritage values.

A 1999 parliamentary review identified that the impact assessment failed to: properly take into account the proposed mine’s location within the cultural and ecological landscape of the Kakadu World Heritage area; appropriately engage with the local Aboriginal community; or credibly map the cultural heritage or document further information about the site revealed by Traditional Owners. While ultimately the mine did not substantially progress, the fact that approval was granted demonstrates that while a world heritage listing does prima facie offer protection, that protection can be limited by a narrow reading of the criteria and relevant local legislation.

The inscription of Budj Bim as an expansive landscape with cultural heritage values exclusive to Indigenous heritage has potentially profound legal consequences. Budj Bim is a vast landscape consisting of a northern, central and southern component. Australian heritage law traditionally only recognises and protects specific physical features, such as a mountain or structure. The listing of an entire landscape demonstrates a broader movement towards recognition of the importance of preserving Indigenous cultural heritage. From a practical perspective, the clear identification in the text of the inscription of tangible and intangible cultural heritage values existing in the landscape will afford Budj Bim a greater degree of statutory protection than other heritage sites of significance to Indigenous people. The recognition of Budj Bim is evidence of a growing acceptance that Indigenous and colonial heritage can coexist without negating each other.

2020 ICOMOS General Assembly 

Sydney is set to host the International Council of Monuments and Sites (ICOMOS) General Assembly in October and, tellingly, the theme is “shared cultures, shared heritage, shared responsibility”; this is epitomised by Budj Bim in a number of ways. Responsibility for the management of the Budj Bim Cultural Landscape is shared between the Gunditjmara people and Victorian National Parks through the Budj Bim Council. The Gunditjmara are endeavouring to increase tourism to the area by allowing visitors to experience a unique, living Indigenous culture, history and environment. To this end they are sharing information on traditions and cultural practices for the benefit of the wider community by, for example, providing online explanations of the tools and techniques used to create the aquifers and harvest the eels.

World Heritage listing guarantees transmission of the story of kooyang harvesting to future generations and makes storytelling of the traditions accessible to non-Indigenous groups, unusual for Indigenous heritage which often is conveyed only orally and within smaller communities. The inscription of Budj Bim means that landscapes, and not just objects, warrant legal protection because they embody and perpetuate the heritage and the stories of the First Australians. It also demonstrates the universal heritage value of recognising and conserving cultural traditions, knowledge and practices. ■


Andrew Beatty is director of Beatty Legal. Tim Unsworth is director of Unsworth Legal.

This article was first published in the Law Society of NSW Journal, Issue 63, February, 2020.

  1. JW Jordan “The Engineering of Budj Bim and the Evolution of a Societal Structure in Aboriginal Australia”, 2012 Australian Journal of Multi-Disciplinary Engineering, 9:1, 63–68.
  2. Mabo v Queensland (No 2) [1992] 175 CLR 1.

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