This paper argues that reform of Aboriginal heritage legislation in New South Wales is well overdue.

Thousands of Aboriginal cultural heritage sites have been damaged or destroyed in New South Wales (NSW) in recent years. According to the 2011 State of Indigenous Cultural Heritage Report, there were some five instances of regulated cultural heritage destruction a week in NSW throughout the period between 2004 and May 2009. Whilst the rate of permits being is sued has slowed slightly since then to just over three per week, the nature of the permits has changed allowing for destruction over a longer period of time. Thus it is hard to know whether the actual level of Aboriginal cultural heritage destruction has really reduced or whether fewer permits are now required for the same level of destruction. This of course only reflects regulated destruction. It does not allow for the unregulated destruction, which may be just as serious.

These figures do not include destruction caused by, for example, long wall coal mining. In the escarpment behind Wollongong there are registered Aboriginal sites being seriously damaged by cracking and subsidence caused by coal mining. At least some of these sites are meant to be protected as they are on the office of Environment and Heritage (OHE), Aboriginal Heritage Information Management System (AHIMS) Register. There seems to be no effective means of dealing with this rather dramatic destruction—for example, a cave containing ancient paintings which is collapsing due to subsidence; or rock carvings which are being affected by cracking of the surface due to mining activity below.

Nor do these figures allow for the unregulated destruction of Aboriginal cultural heritage by agents including government departments themselves. For example, Forests NSW has conducted illegal logging within a designated Aboriginal Place at Biamanga on the NSW South Coast (see State of Indigenous Cultural Heritage 2011 Appendix 2) in breach of its licence conditions. That Aboriginal people themselves had to physically protest and take the Department to court in order to stop this illegal activity demonstrates the ineffectiveness of the current compliance system. Worse still, the Department of Forests was not prosecuted for this breach while some of the Aboriginal protestors were taken to court by Forests NSW for alleged trespass. This example illustrates the stresses which Aboriginal people have to endure to protect their cultural heritage.

The systems currently in place supposedly to protect Aboriginal cultural heritage in NSW are failing miserably; the legislation is too weak, and compliance, even with what exists, is rarely ensured. Even land & Environment Court orders are ignored by companies, as no-one ensures that they are implemented.

This is the situation facing Aboriginal people in NSW who, even when they pursue every legal means, find that it is impossible to protect their cultural heritage under the current systems.

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