Indigenous Underwater Cultural Heritage Legislation in Australia: Still Waters?

The article examines possible amendments to the Australian legislative regime regulating and protecting Indigenous cultural heritage in an offshore, including underwater, context. It suggests that there are significant reforms that are needed to bring the existing domestic legislative regime into conformity with the expectations of contemporary international law, particularly as manifested in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In reaching this conclusion, the article proceeds by examining recent Australian jurisprudence and archaeological studies, considering offshore Indigenous cultural heritage as well as the current Australian domestic legislative framework. It then proceeds to examine the relevant provisions of both UNDRIP and the 2001 UNESCO Convention on the Protection of Underwater Cultural Heritage (UCH Convention). The article identifies that the UCH Convention operates to ignore any legitimate role for Indigenous peoples and does not provide an appropriate foundation for legislative reform. The article concludes by suggesting the content of appropriate legislative reforms that accord with the expectations in UNDRIP.