24 February 2026
6 min read
#Native Title & Indigenous Cultural Heritage, #Planning, Environment & Sustainability
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The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) is the key Commonwealth legislation governing the protection and preservation of places, areas and objects of significance to First Nations people. The Act applies Australia wide and is available where state or territory protections are insufficient. Aboriginal persons may apply to the Minister for declarations to protect areas and objects of cultural significance.
Recent news that the Federal Minister for Environment, the Honourable Murray Watt, rejected an emergency application under the Act to prevent the development of Victoria Park/Barrambin in Brisbane illustrates how the Act operates in practice.
The site was identified in the Queensland Government’s 2032 Delivery Plan for the development of a new stadium to host the 2032 Brisbane Olympic and Paralympic Games.
Following the announcement, the Minister received five applications by various persons and entities, including the Yagara Magandjin Aboriginal Corporation (one of which was subsequently withdrawn), seeking declarations to protect the area from injury or desecration on the basis that it is a significant Aboriginal heritage area.
One of the applications sought an emergency declaration under section 9 of the Act relating to proposed preliminary drilling and drilling related infrastructure. The remaining applications were made under section 10 of the Act.
Section 9 of the Act empowers the Minister to make an emergency declaration for the protection and preservation of an area from injury or desecration if they are satisfied that the area is a significant Aboriginal area and is under serious and immediate threat of injury or desecration. An area is defined in the Act as a “significant Aboriginal area” if it is of particular significance to Aboriginals in accordance with Aboriginal tradition.
Declarations made under section 9 are effective for a period not exceeding 30 days, unless the Minister is satisfied that the declaration should remain in force for a further period (up to a maximum of 60 days in total). There is no legislative requirement for work to stop in the area while the Minister makes their decision, but it is an offence to contravene a declaration under the Act, and penalties may include imprisonment.
On 14 January 2026, the Minister announced his decision not to issue a declaration under section 9 of the Act. He stated that Victoria Park was a significant Aboriginal area (thereby satisfying the first limb of the test under section 9), but was not satisfied that the area was under “serious and immediate threat of injury or desecration”.
The three outstanding applications were made under section 10 of the Act, which enables the Federal Minister to make long term declarations to protect significant Aboriginal areas from injury or desecration. To make a declaration under section 10, the Minister must be satisfied that the area (in this case, Victoria Park) is a significant Aboriginal area under threat of injury or desecration. Unlike section 9, it does not require that the injury or desecration be serious and immediate.
Before making a declaration, the Minister must consult with the appropriate State Minister as to whether there is effective protection of the area under state law. If at any time the Minister is satisfied that there is effective protection under state law, the Minister must revoke the declaration.
The Minister must also nominate a person to provide a report in relation to the area (typically an archaeologist or anthropologist). The report must address the matters referred to in section 10(4), which includes the significance of the area to Aboriginals, the threat of injury; and the effect that any declaration may have on ‘proprietary or pecuniary interests’ held by other persons. Additionally, the Minister has a broad discretion to consider “such other matter he or she thinks relevant” (s 10(1)(d) of the Act)
Before submitting the report to the Minister, the nominated person must publish a notice in the Commonwealth Gazette which includes:
Any representations made in response to the notice must be considered as part of the report and attached to it. No notice has been published to date in respect of the Victoria Park applications.
In deciding the application, the Minister has the power to consult with whomever they choose. In his statement advising his decision, the Minister announced that he had appointed an “independent facilitator to work with the relevant parties…to avoid harm to cultural heritage and inform any future decisions”.
Once satisfied, a declaration should be made under section 9 or 10 which are then published on the Federal Register of Legislation.
The Act gives a broad discretion for the Minister to decide the provisions to protect and preserve the area from injury and desecration. There is also no time limit on the duration of declarations made under section 10.
However, few declarations have been made under section 9 or 10 of the Act and even fewer cases relating to applications to review decisions made under the Act. Since the Act commenced, approximately 500 applications have been made and five permanent declarations are currently in force (see for example the Murujuga Declaration 2025).
In Talbott v Minister for the Environment [2020] FCA 1042, the Federal Court considered an application for judicial review of a Minister’s decision to declare the Shenhua Watermark Coal Mine (a proposed coal mine on the Liverpool Plains in New South Wales) a protected area under section 10 of the Act. Justice Abraham considered whether the broad discretion in section 10(1)(d) extended to permitting the Minister “to consider the social and economic impacts on the local community”.
His Honour quoted Justice French in the case of Tickner and Others v Chapman and Others (1995) 57 FCR 451in saying:
“The public interest in the provision of safe, convenient and economic utilities may in some cases only be advanced at the expense of areas of significance to Aboriginals. The question whether a declaration should be made which would adversely affect public or private interests is a matter within the discretion of the Minister who is required to evaluate the competing considerations and make a decision accordingly. It follows that the statutory purpose does not extend to unqualified protection for areas of significance to Aboriginals.”
In Cooper v Minister for Environment and Water [2025] FCA 1009, the plaintiff, a traditional custodian, sought to have the Federal Court intervene in a delay by the Minister to decide a section 10 application to protect Murujuga (Burrup Peninsula) in Western Australia from injury and desecration arising from existing and future natural gas extraction.
Justice Stewart found that the Minister’s delay of more than three and a half years in determining the application was unreasonable, considering the inherent urgency of the matter and the limited number of stakeholders involved.
His Honour considered that the delay was due to oversight and neglect. However, given that there was evidence of significant steps being taken, His Honour exercised his discretion to withhold making a mandatory order compelling a decision by a specific date, but reserved Ms Cooper’s liberty to seek further orders if the Minister failed to make a decision within three weeks of the judgment (approximately four months after the federal court application was filed).
Applications under the Act can result in significant implications for project delivery and provide an avenue for Traditional Owners to seek protections when state law does not do so.
In the case of Victoria Park, the applications under section 10 to protect the site have not yet been determined and may take years to be decided. It is important to consider the potential application of when planning works.
Our Native Title and Cultural Heritage team can provide further advice and assistance to project proponents navigating both state and commonwealth laws. If you have any questions, please contact us here.
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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