First Nations underwater cultural heritage under increasing scrutiny
09 September 2025
Native title year in review 2024-2025
What you need to know
- The Federal Government has finalised and released Guidelines to assessing and managing impacts to Underwater Cultural Heritage in Australian waters, and has released Draft Technical Guidelines focusing on First Nations underwater cultural heritage.
- These Guidelines are an attempt to retrofit the Underwater Cultural Heritage Act 2018 (Cth), which has previously focused on non-Indigenous underwater heritage such as shipwrecks, to ensure Australia's likely extensive First Nations underwater cultural heritage is identified and protected.
- Assessment of impacts on underwater cultural heritage will be part of the approvals process for major offshore projects, beyond the requirements of the Underwater Cultural Heritage Act 2018.
- In the absence of a legislative requirement for project proponents to comply with the Guidelines, they may be most influential as a "best practice" standard for projects below the high-water mark.
What you need to do
- Be aware that the risk of impact to heritage does not end at the water's edge.
- Where underwater cultural heritage is unknown, assess whether it needs to be investigated further and include Traditional Owners in those investigations.
- Ensure consultation with local communities (including First Nations groups) is thorough to satisfy the requirements of offshore project legislation (for offshore projects) and/or State-based environmental assessment processes (for nearshore and some offshore projects).
New Guidelines regarding assessment and management of underwater cultural heritage
While Aboriginal cultural heritage has been an area of focus for onshore project development for years, assessment of underwater cultural heritage (UCH) has only more recently become an important consideration for infrastructure projects in Australia's coastal and offshore waters.
In 2024, the Australian Government's Department of Climate Change, Energy, the Environment and Water (DCCEEW) released two documents that provide guidance to proponents on assessing underwater cultural heritage:
- In June 2024, DCCEEW finalised and released new Guidelines to assessing and managing impacts to Underwater Cultural Heritage in Australian waters (UCH Guidelines), following consultation on draft guidelines to protect underwater cultural heritage in 2023. See our Native Title Year in Review 2022-2023 article, “First Nations underwater cultural heritage – no longer a submerged issue”.
- Not long after, in August 2024, DCCEEW released draft Technical Guidelines on the Archaeological Assessment of First Nations Underwater Cultural Heritage in Commonwealth Waters, which expand on the UCH Guidelines by identifying methods for finding and assessing First Nations underwater cultural heritage (Draft First Nations UCH Guidelines).
These guidelines are particularly relevant for projects where infrastructure will be placed at depths of up to 80 metres, such as offshore wind and some offshore gas projects, where underwater cultural heritage is most likely to exist.
High standard recommended by Draft First Nations UCH Guidelines despite limitations of legislative framework
Together, the UCH Guidelines and Draft First Nations UCH Guidelines provide guidance on assessing underwater cultural heritage that may be protected under the Underwater Cultural Heritage Act 2018 (Cth) (UCH Act). However, it appears that the Draft First Nations UCH Guidelines seek to retrofit the UCH Act to focus on First Nations underwater cultural heritage. This is a significant re-direction from the UCH Act's predecessor, the Historic Shipwrecks Act 1976 (Cth).
Limited scope of Underwater Cultural Heritage Act 2018
The UCH Act defines underwater cultural heritage relatively broadly – as any trace of human existence that (a) has a cultural, historical or archaeological character; and (b) is located under water. However, the UCH Act only provides protection to "protected underwater cultural heritage". This includes all remains of vessels and aircraft (and associated articles) that have been underwater in Australia for at least 75 years, and any other article of underwater cultural heritage in Commonwealth waters that the Minister has declared to be protected. As it stands, there are no declarations of protected First Nations underwater cultural heritage.
Assessment and management process as recommended by Draft First Nations UCH Guidelines
The Draft First Nations UCH Guidelines propose a minimum standard for archaeological assessment and management of First Nations underwater cultural heritage by recommending project proponents to carry out the following steps:
- Engage with local Traditional Owners.
- Identify areas of underwater cultural heritage sensitivity through desktop studies, in-water, and predictive models (requiring a detailed assessment, including acoustic and seismic surveys, predictive modelling and potentially visual inspection).
- Assess significance by establishing importance, meaning and value of a site or object by engaging underwater archaeologists, cultural archaeologists, geomorphologists, and local Traditional Owners.
- Evaluate impact and quantification of risks to known or suspected underwater cultural heritage. The Draft First Nations UCH Guidelines suggest that all actions involving, or in proximity to, the seabed, have the potential for adverse impacts to underwater cultural heritage.
- Create a management plan to mitigate and avoid impacts "detailing proactive and reactive measures to be implemented during project construction and operation phases".
While the Draft First Nations UCH Guidelines seem useful in a field where there is much uncertainty, there is no legal hook into the UCH Act that would require compliance.
Protection of First Nations underwater cultural heritage under other legislative frameworks
There are other legislative frameworks protecting First Nations underwater cultural heritage. The Draft First Nations UCH Guidelines are perhaps intended to set a "best practice" standard beyond the UCH Act.
EPBC Act
The Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) protects First Nations underwater cultural heritage in offshore areas as part of the marine environment, which is one of the nine matters of national environmental significance protected by the EPBC Act. Section 23 prohibits the following:
- the taking of an action in a Commonwealth marine area (essentially waters between 3 and 200 nautical miles from the coast) that has, will have or is likely to have a significant impact on the environment; and
- the taking of an action outside a Commonwealth marine area that has, will have or is likely to have a significant impact on the environment in a Commonwealth marine area.
In theory, this prohibition extends to actions that have a significant impact on First Nations underwater cultural heritage in offshore areas because the definition of "environment" in the EPBC Act includes heritage values of places and cultural aspects of other limbs of the definition (e.g. cultural aspects of ecosystems and their constituent parts). The DCCEEW Significant Impact Guidelines indicate that referral is required if there is a real chance of a substantial adverse impact on heritage values in the Commonwealth marine area. While this threshold may not frequently be reached, it does mean that an assessment of impacts is required.
Offshore project legislation
The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act) and Offshore Electricity Infrastructure Act 2021 (Cth) (OEI Act) are the primary statutes regulating the offshore oil and gas and offshore wind industries respectively.
Under both legislative frameworks, project proponents are required to carry out consultation in relation to the impacts of their authorised project activities, which are addressed in "environment plans" (under the OPGGS Act) or "management plans" (under the OEI Act). In this context, it is possible that the Draft First Nations UCH Guidelines will be a reference point for offshore proponents consulting with Traditional Owners who raise underwater cultural heritage as an issue. For more about these regimes, see our Native Title Year in Review 2024-2025 article, "First Nations consultation requirements for offshore projects".
Native Title Act and ATSIHP Act
Protection of underwater cultural heritage is also possible under the Native Title Act 1993 (Cth) and Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) as the application of these Acts extends to offshore waters.
Native title can be recognised in land and waters and there are determinations recognising native title over coastal waters across northern Australia.
Similarly, the ATSIHP Act can protect a site or object of particular significance to Aboriginal peoples occurring in any waters over the continental shelf of Australia or, as described by the Full Federal Court in Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193, "recognises the capacity for sea country, and its marine resources, to be 'of particular significance to [Aboriginal and Torres Strait Islander peoples] in accordance with Aboriginal tradition'". This is particularly important for offshore intangible cultural heritage, such as a song line located offshore that has cultural significance for Aboriginal people living onshore but is not a "trace of human existence" capable of being declared by the Minister as protected under the UCH Act.
State & Territory cultural heritage legislation
State and Territory legislative frameworks may also apply, particularly to those parts of an offshore project that traverse coastal waters. Each State and Territory has its own specific Aboriginal heritage framework, some of which extend to protecting cultural heritage in the seabed. A summary of the scope of State and Territory heritage legislation is provided in our Native Title Year in Review 2022-2023 article, “First Nations underwater cultural heritage – no longer a submerged issue”.
State & Territory environmental assessment processes
State and Territory environmental assessment processes may also require consultation with Traditional Owners, in which the Draft First Nations UCH Guidelines may be held up as "best practice" where First Nations underwater cultural heritage is a relevant consideration. However, it perhaps may be regarded as too onerous for work of the scale that often occurs nearshore.
In Victoria, First Nations underwater cultural heritage has been identified in Environment Effects Statement for major projects for several years. See for example the EES scoping requirements for the Star of the South Offshore Wind Farm, Marinus Link Undersea Transmission Cable and Viva Energy Gas Import Terminal, which all require assessment of "potential for adverse effects on … underwater Aboriginal cultural heritage" as part of an overarching heritage assessment.
What should proponents of offshore and nearshore projects do?
Identification and protection of offshore UCH is now an element of impact assessment for large scale sea-based projects. This work is a lot less familiar than onshore heritage assessments, which makes the Draft First Nations UCH Guidelines potentially useful beyond their origin in the rather limited UCH Act. It is important to plan ahead and engage early with Traditional Owners about both on- and off-shore components of a project. The location of songlines or other intangible heritage places should ideally be identified at the time of site selection. Although there is no comprehensive regime for the protection of UCH, the patchwork comes together to provide meaningful protection. The work needs to be done for the sake of sea country and for sake of efficient project delivery.
