Significant reforms proposed to cultural heritage protections in the Northern Territory

Strengthening safeguards and streamlining approvals for sacred sites in the NT 4 min read

Protection of sacred Indigenous sites is a cornerstone of preserving Australia’s First Nations heritage. The Northern Territory Aboriginal Sacred Sites Act 1989 (the Act) requires project proponents operating in the Northern Territory (NT) to obtain approval to operate in the vicinity of sacred sites and comply with any conditions imposed to ensure their activities do not harm such sites.

The NT Government has proposed amendments to the Act. The Northern Territory Aboriginal Sacred Sites Legislation Amendment Bill 2025 (the Bill) aims to improve the regulatory framework by tightening timeframes and reducing red tape, while also enhancing protections for sacred sites. The NT Legislative Scrutiny Committee is considering the Bill and will provide its report to Parliament by 7 May 2025.

In this Insight, we outline the key changes proposed by the Bill and consider how they may impact stakeholders navigating the approval process.

The current framework

The Act provides the framework for the registration and protection of sacred sites in the NT. Under the legislation, the Aboriginal Areas Protection Authority (the Authority) is empowered to issue Authority Certificates (Certificates) to people who want to enter, use, or carry out works on sacred sites.¹

After receiving an application, the Authority can request a conference with custodians to discuss the application and potential conditions of the Certificate.² A Certificate will be issued where the Authority is satisfied that the work or use of the land could proceed without substantive risk of damage to a sacred site on the land.³

The Certificate will set out the relevant conditions the Authority considers accords with the custodian's wishes or any agreement in place between the custodians and the applicant.⁴ The Act also establishes criminal offences for damaging sacred sites.⁵

What is changing and why?

The Bill proposes several key amendments aimed at improving efficiency while maintaining robust protections for sacred sites. Key changes include provisions for transferring Certificates to new parties in continuing projects and introducing enforceable undertakings for minor contraventions.

We consider these changes in detail below.

Transferring Authority Certificates

Currently, the Act does not allow for the transfer of a Certificate. Certificates are specific to the original applicant and identified works. For example, if a development is sold, the new developer must apply for a new certificate, even if the works remain unchanged, requiring repeated approvals and negotiations with custodians.

The Bill establishes a mechanism allowing for transferring a Certificate when prior consultations were conducted, and a Certificate was previously issued.⁶ Now, a person may apply for a transfer of a Certificate, subject to the land areas and usage conditions remaining the same.

This change aims to improve efficiency by eliminating repetitive applications within long-term projects involving multiple parties over time.

Recorded parties

The Bill also establishes a mechanism for a holder of a Certificate to apply to have additional individuals or groups added as 'recorded parties'. Subject to the area, use of the land and the conditions of the existing Certificate remaining unchanged, the Authority must issue a new Certificate to the applicant holder, which includes the added recorded parties. This will have practical benefits for proponents, who wish to ensure that contractors or joint venture partners will also have the benefit of acting in accordance with an existing Certificate.

New enforceable undertakings

New Part IVA of the Bill will establish a process for dealing with contraventions of the Act or conditions in a Certificate. The Authority will have the power to enter into an enforceable undertaking with a person regarding alleged contraventions. This amendment aligns the Act with enforcement mechanisms commonly used in environmental and development legislation.

The undertaking may contain any terms or conditions that the Authority considers necessary to ensure compliance with the Act or a Certificate.⁷ Time limits for performing obligations and methods to monitor compliance must be stated in the undertaking.⁸ Additionally, notice of both the alleged contravention and the undertaking must be published by the person giving it.⁹

When accepting an undertaking, various factors must be considered by the Authority, including:

• the nature and gravity of the conduct;
• the maximum penalty for the alleged contravention;
• the benefits of the proposed undertaking; and
• matters of public interest.¹⁰

To promote transparency, notice of decisions to accept an undertaking along with reasons must be published by the Authority.¹¹

If a proponent fails to comply with an enforceable undertaking, an application can be made to the Supreme Court for enforcement.¹² The Supreme Court may issue orders requiring payment of costs incurred by the Authority in mitigating any harm resulting from non-compliance or compensation to individuals who suffered loss due to such contraventions.¹³

Notably, entering into an enforceable undertaking precludes criminal proceedings against a person who has agreed to it.¹⁴ If full compliance with an undertaking is achieved, reasonable steps must be taken by the Authority to discontinue prosecution efforts.¹⁵

Composition and Membership of Authority

The amendments formalise practices concerning appointments to the Authority. The Authority will be constituted of ten First Nations members nominated by Land Councils and two members nominated by the Minister.¹⁶

Members appointed via Land Councils can face termination on grounds such as incompetence or misbehaviour. Conversely, ministerial appointees may only face termination following written recommendations from the Minister.¹⁷

What do the changes mean for me?

It is important to remember that these reforms are still being considered by Parliament and are not yet law.

If the Bill is passed, the introduction of enforceable undertakings will provide a more flexible way to address minor contraventions without immediate resort to criminal prosecution.

If you are involved in ongoing or long-term projects in the Northern Territory, the proposed amendments may also simplify your compliance obligations by allowing the transfer of Certificates, and the addition to a Certificate of other parties working on a project as recorded parties.