The 2016 amendments to the AHA recognised Aboriginal intangible heritage, introduced a system for recording intangible heritage on the Aboriginal Cultural Heritage Register, and made it an offence to use registered intangible heritage for commercial purposes without consent of the relevant registered owner. The amendments further incorporated Aboriginal intangible heritage agreements between registered owners and third parties to define those uses that could be made of registered heritage.
Aboriginal intangible heritage is defined in the AHA as knowledge or expression of Aboriginal tradition, including oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, environmental and ecological knowledge, and intellectual creations or innovations derived from these, but excludes Cultural Heritage and anything widely known to the public.55
The obvious limitation with the definition of Aboriginal intangible heritage in the AHA is that it is separated from the definition of Cultural Heritage. All heritage is linked, not only to particular land and waters but to Aboriginal Peoples, their spirituality and their identity. You cannot have one without the other, and if this is not appropriately expressed in the guiding legislation, then Cultural Heritage cannot properly be understood or protected by wider community. In addition, the protection under the AHA only extends to intangible heritage that is not widely known by the public. This begs the question whether Aboriginal Cultural Heritage loses its "cultural worth" just because it is no longer secret.
Understandably, Aboriginal Peoples would resoundingly disagree with this notion. Limitations to the registrability of intangible heritage is misguided and leads to ineffective protection.
The registration of intangible property on the Aboriginal Cultural Heritage Register has proven decidedly ineffective as only one registration of intangible heritage on the Aboriginal Heritage Register has occurred since provisions were introduced into the AHA in 2016. Some concerns raised by Traditional Owners have been the absence of heritage overlay in the registration, the need to provide sensitive cultural knowledge to non-Traditional Owners, public servants and the lack of tangible outcome.
Discussion question: What are the advantages/challenges of recording Aboriginal Cultural Heritage in a register?
- How do the definitions in the AHA need to change to ensure appropriate interpretation of Aboriginal Cultural Heritage?
- What have been the issues registering intangible heritage on the Aboriginal Cultural Heritage Register?
- How should intangible heritage be protected?
- How can the registration system be improved?
Reviewed 04 January 2021