Notice of an application for the protection of a specified area, being the area known as Munday Swamp and Munday Swamp Poison Gully, Perth, Western Australia – Invitation to make representations

Administered by Department of Agriculture, Fisheries and Forestry

Legislation au C2018G00981 In force Gazette

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Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Notice of an application for the protection of significant traditional areas located within the proposed development footprint of the Perth Aiport New Runway Project, Perth, Western Australia.

Invitation to make representations

I, Susan Phillips, hereby give notice as follows:

The Minister for the Environment, responsible for the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act), has received an application made under section 10 of the Act. The application is seeking long term preservation and protection of significant Aboriginal areas located within the proposed development footprint of the Perth Aiport New Runway Project, Perth, Western Australia, and appointed me to provide a report to her under section 10(1)(c) of the Act.

The Applicants

The application is made by Mr Wayne Nannup, Chief Executive Officer, South West Aboriginal Land and Sea Council, on behalf of the Whadjuk traditional custodians, who form part of the Noongar nation of people in the South West of Australia.

The purpose of the application

The application seeks the preservation or protection of the area specified in the application, shown at Figure 1 below, from injury or desecration. Section 10 of the Act enables the Minister to decide whether to make a declaration to preserve and protect the specified area, if the Minister is satisfied that the area is a significant Aboriginal area and is under threat of injury or desecration. In the Act, the term ‘significant Aboriginal area’ refers to an area that is of particular significance to Aboriginal people in accordance with Aboriginal tradition. Section 3 of the Act provides definitions of ‘significant Aboriginal area’ and other relevant terms including ‘Aboriginal tradition’ and ‘injured or desecrated’. The area specified for protection, the claimed significance of the area, and the claimed nature of the threat of injury or desecration are set out below.

Matters the report is required to deal with

The Minister will consider my report under section 10 of the Act in relation to the area specified for protection before deciding whether to make a declaration. Under section 10(4) of the Act, the report is required to deal with the following matters:

(a)           the particular significance of the area to Aboriginal people;

(b)           the nature and extent of the threat of injury to, or desecration of the area;

(c)            the extent of the area that should be protected;

(d)           the prohibitions and restrictions to be made with respect to the area;

(e)           the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the applicants on whose behalf the application is made;

(f)             the duration of any declaration;

(g)            the extent to which the area is or may be protected by or under a law of the State of New South Wales, and the effectiveness of any remedies available under any such law; and

(h)           such other matters (if any) as are prescribed.

 

The area sought to be protected (the 'specified area')

The Applicant specifies two areas for which protection is sought as traditional areas located within and near the proposed Perth Aiport New Runway Project, Perth, Western Australia. These include:

  • Munday Swamp (Department of Aboriginal Affairs Heritage Registered Site ID 3719)
  • Munday Swamp Poison Gully (Department of Aboriginal Affairs Heritage Registered Site ID 3888)

Figure 1: Map showing the specified area near Perth Airport, Perth, Western Australia.

Claimed nature of particular significance

The application indicates that the particular significance of the specified area arises from Whadjuk people’s obligations under Noongar Lore as follows (summarised version of the Applicant’s claims):
 

  • The Whadjuk people are the traditional owners of, and have cultural responsibilities and rights in relation to the specified area which includes Munday Swamp and Poison Gully.
  • Munday Swamp and Poison Gully are linked to a web of Aboriginal heritage sites in the area. The sites are of particular spiritual and cultural significance to the Whadjuk people in accordance with their traditions, observances, customs and beliefs, and those traditions are continuous and practiced today.
  • The specified area is one of the last remaining places of extreme cultural and historical significance in the Perth metropolitan area.
  • Munday Swamp and Poison Gully are central to Whadjuk people’s connection to the dreamtime stories and Whadjuk Lore and spiritual and physical occupation.
  • Munday Swamp and Poison Gully are linked to the Rainbow Serpent who replenishes the area with rain water;
  • The specified area contains significant artefact scatters;
  • Elders and Whadjuk people visit the specified area for healing, to hunt seasonally for turtles, for resource gathering, ceremony and teaching children.
  • The specified area is the site of many cultural practices including corroboree, funeral rites and religious rituals with spirit communication.

 

Claimed threat of injury or desecration

The Application states that the specified area would be injured or desecrated by the proposed Perth Airport New Runway Project, which includes the construction of a new runway, runway end safety area, associated taxiways, drainage infrastructure and aviation equipment such as the High Intensity Approach Lighting. The Application asserts that the new runway will be constructed in part on, or adjacent to, the Specified Areas.

Invitation to make representations

Interested persons are invited to make representations on this matter to:

Susan Phillips
Barrister
13th Floor, St James Hall
169 Phillip Street
SYDNEY NSW 2000

Ph: 02 9335 3063
Fax: 02 9237 0895
Email: phillips@stjames.net.au

Representations must be made in writing by close of business 18 January 2019 or within such further period as may be allowed. You should not send your representations directly to the Minister.

If you wish to claim confidentiality over any part of your representation, please identify why you are claiming confidentiality and how you want confidentiality to apply. All representations, whether or not they are provided in confidence, will be provided to the Minister for the Environment, and the Department of the Environment and Energy, along with the section 10 report. Representations, even those subject to confidentiality, may be disclosed where it is authorised or required by law, to meet procedural fairness requirements, and in response to a request by a House or Committee of the Parliament of the Commonwealth.

 

Overview

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) was enacted to address the need for the protection and preservation of areas that hold significant cultural and spiritual importance for Aboriginal and Torres Strait Islander peoples. This Act empowers the Minister for the Environment to make declarations to protect these areas from injury or desecration, thereby safeguarding their heritage. The Parliament of Australia enacted this legislation to ensure that significant Aboriginal sites are preserved and respected, reflecting the cultural values and traditions of Indigenous Australians. The policy objective of the Act is to provide a legal framework that recognises and protects the cultural heritage of Indigenous peoples, ensuring that their traditional practices and beliefs are honoured and maintained for future generations. The Act seeks to balance the needs of development with the imperative to protect and preserve areas of profound cultural significance.

Scope and Application

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) applies to any person or entity that proposes to undertake activities that may affect significant Aboriginal areas across Australia. The Act provides a framework for the protection of these areas, which are defined as places of particular significance to Aboriginal people in accordance with Aboriginal tradition. The Act is applicable on a national level, extending its reach across all states and territories of Australia. The Act can extend its application through subordinate instruments, which allow for the specification of particular areas or types of activities that warrant additional protection. The Act does not explicitly state exclusions or exemptions, but it is designed to balance the need for development with the preservation of cultural heritage. The Act’s application is triggered by proposals that may threaten significant Aboriginal areas, prompting the Minister for the Environment to consider making a declaration to protect these areas from injury or desecration. This declaration process involves a report that assesses various factors, including the cultural significance of the area, the nature of the threat, and potential impacts on other interests.

Key Provisions

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Act) provides mechanisms for the protection of significant Aboriginal areas that are under threat of injury or desecration. Section 10 of the Act allows the Minister for the Environment to make a declaration to preserve and protect such areas, provided that the Minister is satisfied that the area is of particular significance to Aboriginal people in accordance with Aboriginal tradition and is under threat of injury or desecration. This Act mandates the Minister to consider a report before making any such declaration. Section 10(1)(c) of the Act specifically requires the Minister to appoint a person to provide a report, which includes the particular significance of the area, the nature and extent of the threat, the area that should be protected, and other relevant considerations such as the effects on proprietary interests, the duration of the declaration, and existing protections under state laws. The Act imposes obligations on various parties involved in the application and report process. The Minister for the Environment, upon receiving an application under section 10, must consider the report provided by the appointed person. The report must comprehensively address the significance of the area, the threat it faces, and other specified matters. Furthermore, interested persons are given the opportunity to make representations regarding the application, which must be submitted by a specified deadline. Confidentiality claims must be clearly justified and marked in the representations. Breaching the provisions of the Act or failing to comply with the obligations set out within it can result in legal consequences. While the Act itself does not explicitly outline specific penalties for breaches, breaches of statutory duties or non-compliance with the Act's provisions can lead to civil or criminal liability. For instance, wilful damage to a protected area could result in criminal charges under other relevant Australian laws, potentially leading to significant fines and imprisonment. The seriousness of any consequences depends on the nature and extent of the breach, as well as any additional applicable laws.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.