Aboriginal and Torres Strait Islander Heritage Protection (Murujuga) Declaration 2025

This instrument, the Aboriginal and Torres Strait Islander Heritage Protection (Murujuga) Declaration 2025, is a Ministerial declaration made under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act) (s3 Authority; instrument header). It declares a geographically defined area known as Murujuga in Western Australia to be a significant Aboriginal area and creates a statutory prohibition against moving, damaging, defacing or otherwise disturbing Aboriginal sites or Aboriginal objects located in that declared area (s5; s6(1)). The declared area is specified by reference to a GIS spatial dataset titled ‘ATSIHP_Declared_Area_Murujuga.shp’ held by the Department of Climate Change, Energy, the Environment and Water on 10 September 2025, and illustrated by the Schedule 1 map (s5(1); Schedule 1). The declaration excludes particular road corridors identified in the spatial dataset (s5(2)).

Mechanically, the instrument does four principal things. First, it identifies the declared area by dataset reference and map (s5; Schedule 1). Second, it creates a blanket prohibition on physically moving, damaging, defacing or otherwise disturbing Aboriginal sites or Aboriginal objects within that declared area (s6(1)). Third, it specifies three statutory exceptions to the prohibition: actions by a Traditional Owner or Traditional Custodian in accordance with Ngarda-Ngarli tradition; actions by emergency services personnel in the course of their duties; and actions where prior written agreement has been given by the Murujuga Aboriginal Corporation (MAC) (s6(2)(a)-(c)). Fourth, the instrument carves out industrial gaseous emissions from the statutory prohibition, stating that such emissions are not taken, for the purposes of s6(1), to move, damage, deface or otherwise disturb an Aboriginal site or Aboriginal object (s6(3)). The instrument sets a delayed commencement (the whole instrument commences 12 months after registration) and a fixed period of effect of 10 years from registration, with repeal the day after the end of that period (s2(1); s7; s8).

The instrument does not itself set penalty amounts or specific enforcement mechanisms. It references the Act: the instrument is made under s10 of the Act (s3), and a Note reproduces that under subsection 22(1) of the Act, a person commits an offence if they engage in conduct contravening a provision of a declaration made under Part II of the Act (s6 Note). The instrument also supplies definitions for key terms specific to this declaration, including “Aboriginal site”, “Aboriginal object”, “industrial gaseous emissions”, “MAC”, and confirms that a number of expressions are also defined in s3 of the Act (s4).

In short, the instrument establishes a time‑limited statutory prohibition on physical interference with Aboriginal sites and objects across a defined Murujuga area, preserves customary activities and emergency responses as exceptions, gives a named Aboriginal corporation a gatekeeping role to authorise disturbance, and expressly excludes a category of industrial emissions from constituting prohibited disturbance. It takes effect 12 months after registration and operates for 10 years.

The declaration deploys a small set of legal constructs anchored to the Act. The fundamental concept is a Part II declaration to preserve and protect a significant Aboriginal area by criminalising specified kinds of physical interference with Aboriginal sites and objects within a defined spatial boundary (s3 Authority; s5; s6(1)). The declaration is spatially defined by reference to a specific GIS dataset and illustrated by a map in Schedule 1 (s5(1); Schedule 1). The instrument’s definition-block situates the substantive objects of protection: “Aboriginal site” and “Aboriginal object” are defined for this instrument to include places and objects of particular significance in accordance with Ngarda-Ngarli tradition, with an illustrative (non-exhaustive) list for “Aboriginal object” that expressly includes petroglyphs, rock art, middens, stone arrangements, paintings, artefacts, Aboriginal remains and certain types of cultural features (s4).

The instrument imposes a general negative duty on persons not to “move, damage, deface, or otherwise disturb” an Aboriginal site or object in the declared area (s6(1)). That prohibition is framed in broadly capacious language: the verbs “move”, “damage”, “deface” and “otherwise disturb” capture a range of physical interventions, and the instrument adds a non‑exhaustive notion of “Aboriginal object” which can encompass both movable and immovable items (s4, s6(1)). The instrument also creates affirmative statutory carve-outs that qualify the negative duty: Traditional Owners and Traditional Custodians are exempt where they act in accordance with Ngarda-Ngarli tradition, emergency services personnel are exempt when acting in the course of their duties, and the MAC can authorize disturbance through prior written agreement (s6(2)(a)-(c)).

A distinctive substantive concept in this declaration is the express non‑treatment of industrial gaseous emissions as disturbance. Section 6(3) states that an Aboriginal site or object is “taken not to be moved, damaged, defaced or otherwise disturbed by, or as a result of, industrial gaseous emissions.” The instrument defines “industrial gaseous emissions” by inclusive example, listing ammonia, carbon dioxide, oxides of nitrogen and oxides of sulphur and indicating the list is not exhaustive (s4). This creates a categorical separation between physical acts and certain atmospheric or chemical discharges for the purpose of civil/criminal liability under the declaration.

The instrument relies on and cross‑references definitions contained in s3 of the Act, acknowledging that other expressions used in the instrument,such as “Aboriginal”, “Aboriginal remains”, and the probably relevant labels “Traditional Owner” and “Traditional Custodian”,are defined in the Act (s4 Note). The Minister’s statutory authority to make the declaration is stated (s3 Authority), and the instrument establishes temporal boundaries: a commencement deferral of 12 months after registration (s2(1)), a 10‑year operative period from registration (s7), and automatic repeal the day after the operative period ends (s8).

The instrument’s scope is spatially limited to the declared area known as Murujuga in Western Australia as described by the referenced GIS dataset and map (s5(1); Schedule 1). Within that geographic boundary, the legal rule (the prohibition in s6(1)) applies to “a person”, an unqualified term that captures natural persons and legal entities. Consequently, the group affected includes private sector operators, landholders, mining and industrial operators, cultural heritage consultants, contractors, site visitors, researchers, and government agencies carrying out works or regulatory functions within the declared area (s6(1)). The instrument does not provide a different rule for different classes of person; the prohibition is general subject to specific exceptions (s6(2)).

Traditional Owners and Traditional Custodians are a distinct class with an express statutory right to act in accordance with Ngarda-Ngarli tradition without being subject to the prohibition (s6(2)(a)). The instrument does not itself define “Traditional Owner” or “Traditional Custodian”; it notes that a number of expressions are defined in s3 of the Act (s4 Note). The Murujuga Aboriginal Corporation (MAC) is both identified by ABN in the definitions (s4) and given an operational gatekeeper role: a person may lawfully move, damage, deface or otherwise disturb an Aboriginal site or object only if they have prior written agreement from MAC (s6(2)(c)). That delegates a practical permitting function to a named Indigenous corporate actor.

Emergency services personnel are another defined‑effect class: actions by them in the course of their duties are exempt from the prohibition (s6(2)(b)). The instrument thereby recognises a public safety exception for first responders.

Industries that emit gases are also affected, but differently. Section 6(3) expressly states that industrial gaseous emissions are not treated as moving, damaging, defacing or otherwise disturbing an Aboriginal site or object for the purposes of the prohibition. The instrument defines “industrial gaseous emissions” by reference to types of gases (ammonia, carbon dioxide, oxides of nitrogen and oxides of sulphur) and includes “but is not limited to” language (s4). That means operators whose activities cause or rely on such emissions remain inside the geographic scope of the declaration but are insulated from prosecution under the declaration for impacts attributable solely to those emissions, at least for the particular statutory prohibition created here.

Government decision-makers are affected in at least two ways. The Minister for the Environment and Water is the declared maker of the instrument (the instrument is headed as made by Murray Watt and states it is made under s10 of the Act) and therefore is the decision-making authority that created the rule and the temporal boundaries (s3; instrument header). The Department of Climate Change, Energy, the Environment and Water is the repository for the GIS dataset used to define the declared area (s5(1)), so administrative practice around mapping, public access to spatial data, and any future amendments will involve that department. Finally, enforcement actors,prosecutors and courts,will be affected in exercising the Act’s offence provisions in respect of contraventions of the declaration; the instrument reproduces a Note referencing s22(1) of the Act as creating an offence for contravening a declaration (s6 Note).

The declaration establishes primary duties, statutory rights, and an approval mechanism. The central duty is mandatory and negative: “A person must not move, damage, deface, or otherwise disturb an Aboriginal site or Aboriginal object in the declared area” (s6(1)). The duty is framed as an absolute prohibition subject to the three explicit statutory exceptions, which operate as rights or immunities permitting otherwise prohibited conduct in specific circumstances (s6(2)).

Rights and exemptions under the instrument

• Traditional activity exemption: Traditional Owners and Traditional Custodians retain the right to act in accordance with Ngarda-Ngarli tradition without breach of the duty (s6(2)(a)). This is a positive recognition of customary authority to carry out cultural practices that might otherwise engage the prohibition. The instrument does not elaborate how compliance with “in accordance with Ngarda-Ngarli tradition” is to be verified administratively or judicially; the phrase anchors legal recognition in the customary law term.

• Emergency response exemption: Emergency services personnel acting in the course of their duties are permitted to undertake actions that would otherwise contravene the prohibition (s6(2)(b)). This prevents the prohibition from obstructing immediate public safety duties.

• MAC prior written agreement: The Murujuga Aboriginal Corporation (MAC) may provide prior written agreement authorising a person to move, damage, deface or otherwise disturb an Aboriginal site or object. A person who holds such prior written agreement will not contravene the prohibition (s6(2)(c)). The instrument identifies MAC by ABN in the definitions (s4). This creates a delegated consents regime: MAC has de facto agenda-setting power over authorised disturbances within the declared area.

Limitation on coverage: industrial emissions

• Industrial gaseous emissions are expressly excluded from the statutory concept of “move, damage, deface or otherwise disturb” for the purposes of s6(1) (s6(3)). The instrument defines “industrial gaseous emissions” with examples (ammonia, carbon dioxide, oxides of nitrogen and oxides of sulphur) and uses inclusive language (s4). The exclusion limits the duty’s reach to physical or other non‑gaseous impacts.

Temporal duties and rights

• The duties and rights created by this instrument have defined temporal boundaries. The instrument commences 12 months after registration (s2(1)) and remains in force for 10 years from registration (s7), after which the instrument is repealed the day after that period ends (s8). This fixed temporality affects planning, compliance timeframes, and the duration of MAC’s gatekeeper role.

The declaration itself does not create independent penalties; it operates through the enforcement provisions of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act). The instrument is made under s10 of the Act (s3 Authority) and includes a Note reminding that “Under subsection 22(1) of the Act, a person commits an offence if the person engages in conduct that contravenes a provision of a declaration made under Part II of the Act in relation to a significant Aboriginal area” (s6 Note). That Note is the only direct statutory pointer within the instrument to criminal liability. The instrument contains no numerical penalty schedule, no civil remedies, no administrative sanctions, and no specified investigatory powers or enforcement agency designations; those functions are therefore left to the Act’s existing statutory framework.

What the instrument leaves to the Act and authorities

• Offence creation: The instrument relies on subsection 22(1) of the Act to create criminality for contravening the declaration (s6 Note). The instrument does not replicate the wording of s22(1) nor state the maximum penalties, indictability, or classification of the offence; those details remain in the Act.

• Enforcement actors and process: The instrument does not identify which Commonwealth or State bodies will investigate potential contraventions, nor does it modify prosecutorial discretion, investigatory powers or evidence rules. Enforcement steps, complaint mechanisms, and the operational interface between Commonwealth and State authorities are not specified in the instrument and thus will follow the Act and existing administrative and prosecutorial arrangements.

• Defences and proof: The instrument itself creates statutory exceptions (Traditional Owner/Custodian activity, emergency services, MAC prior written agreement) which operate as non‑liability bases. The evidentiary burden of proving a person acted within these exceptions is not set out in the instrument; that will be a matter for evidence and for the Act’s prosecutorial practices in any enforcement proceeding.

Practical enforcement implications

• The instrument’s broad prohibition (s6(1)) paired with a Note referencing the Act’s offence provision means potential contraventions are prosecutable under the Act’s criminal provisions. Parties operating in the declared area should therefore anticipate criminal enforcement being the principal legal consequence of breach, subject to prosecutorial decision-making under the Act.

The instrument is expressly made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (s3 Authority) and repeatedly signposts that its terms should be read in the context of the Act’s definitional and enforcement framework (s4 Note; s6 Note). The declaration therefore sits as a Part II declaration under the Act and is designed to operate as one of the Act’s instruments for protecting significant Aboriginal areas. The instrument itself does not purport to amend, displace or override other Commonwealth, State or local legislation; instead, it adds a layer of statutory prohibition applicable within its spatial boundary and leaves other legal regimes intact.

Specific interface points in the text

• Definitions and cross‑references: The instrument imports a number of definitional concepts by reference to s3 of the Act (s4 Note). That means legal interpretation of terms like “Aboriginal”, “Aboriginal remains”, “Traditional Owner” or “Traditional Custodian” will be carried out using the Act’s definitions and any interpretative materials tied to them (s4 Note).

• Enforcement under the Act: The instrument’s Note cites subsection 22(1) of the Act as making it an offence to contravene a declaration made under Part II of the Act (s6 Note). Enforcement therefore proceeds under the Act’s criminal law provisions and associated investigatory procedures.

• Spatial mapping and administrative data: The instrument defines the declared area by reference to an explicit GIS dataset held by a Commonwealth department (s5(1)). This creates an operational nexus between the declaration and administrative geospatial systems, which may need to be reconciled with State land titles, planning maps, environmental approvals, and utility cadastral records when determining overlap or conflict.

Potential interactions not altered by the instrument

• Environmental regulation: The instrument does not itself modify environmental approval regimes, emissions standards or planning approvals administered under State or Commonwealth environmental law. It does, however, create an overlay that prohibits physical disturbance to specified cultural sites irrespective of other approvals, subject to the instrument’s exceptions. The instrument’s explicit exclusion of industrial gaseous emissions from being treated as disturbance (s6(3)) means that compliance with environmental or emissions laws will remain relevant for those matters but that such emissions cannot, under this instrument, constitute a contravention of the declaration’s prohibition.

The instrument supplies internal information on commencement and makes two temporal choices that function like lifecycle amendments but does not record prior amendments. The commencement clause states that “the whole of this instrument” commences 12 months after the date of registration (s2(1)); the instrument also contains a table with a note indicating that the table and its contents relate only to the instrument as originally made and will not be amended in the instrument text to reflect later changes (s2(1) Note). This indicates the instrument is an original instrument rather than a consolidation of prior public instruments, and that official commencement timing is deferred by one year from registration.

The instrument contains a fixed period of operation: it “has effect for 10 years from the date this instrument is registered” (s7). It then specifies an automatic repeal: “This instrument is repealed the day after the end of the period specified in section 7” (s8). Those provisions create a built‑in sunset or expiry mechanism rather than an open-ended instrument. There are no amendment clauses providing for interim modification by regulation, no power for the Minister to vary boundaries or conditions within the instrument text itself, and no transitional provisions for actions commenced before commencement. The only route for future change is by making a further instrument under the Act or amending the instrument by legislative action not provided in this text.

The instrument’s schedule notes and the commencement table also instruct that column 3 content of the table is not part of the instrument and may be edited in published versions (s2(2)). This procedural note suggests that certain published metadata around commencement may be treated as non‑operative commentary rather than binding text.

No history of prior versions, revocations or earlier instruments is recorded in the instrument itself. The instrument is silent on whether it replaces, supersedes, or coexists with any prior Part II declarations over the same area, and provides no transitional machinery to accommodate ongoing approvals, existing statutory licences, or works already underway at the time of commencement. The absence of amendment provisions means that any future adjustments to the declared area, exceptions, or other substantive features would require a new instrument made under the Act.

In sum, the instrument is made as an original Part II declaration with a 12‑month deferred commencement, a 10‑year operative period, and automatic repeal on expiry (s2(1); s7; s8). It contains no within‑instrument amendment mechanism, no recorded amendment history, and no transitional provisions for existing projects; future change would require a subsequent instrument or legislative action under the Act.

The instrument contains no litigation history, case citations or references to judicial determinations within its text. It does not name any court proceedings, and it does not reproduce or summarise past litigation concerning Murujuga or the Act. The only statutory cross‑reference in the instrument that points to enforcement is the Note referencing subsection 22(1) of the Act which creates an offence for contravening a Part II declaration (s6 Note), but the instrument does not mention any prosecutions, convictions or court orders.

Because the instrument is an instrument made under the Act (s3), any litigation that would arise from alleged contraventions of the declaration would proceed through the criminal process or by civil challenge to administrative action under general judicial review principles, but the instrument itself is silent on those paths. The instrument also does not provide procedural mechanisms for review of MAC’s prior written agreements or for review of the Minister’s decision to make the declaration; therefore any legal challenge to the declaration’s validity or to decisions made under it would have to be framed under the Act and general administrative law, not under provisions contained within the instrument.

The instrument’s silence on litigation history means readers should treat it as a fresh statutory instrument unaccompanied by judicial interpretation in the text. Any precedential legal questions,such as the meaning of “otherwise disturb”, the evidentiary standard for establishing Ngarda-Ngarli tradition, the scope of MAC’s written agreements, or the boundary interpretation of the referenced GIS dataset,remain open to judicial determination and are not resolved within the instrument.

Because the instrument lists no cases, no precedential guidance for enforcement or compliance is provided in the instrument itself. Practitioners should therefore expect that courts called upon to interpret or apply the instrument will do so in the context of the Act and general statutory interpretation principles, but the instrument provides no direct litigation record or appellate guidance.

This section identifies practical and legal pitfalls that the instrument itself creates or leaves unaddressed. Each point is grounded in the instrument’s text.

1. Commencement delay and planning horizon (s2(1); s7; s8): The whole instrument commences 12 months after registration (s2(1)). Persons planning activity should not assume immediate effect; there is an intentional delayed start. The declaration is time‑limited to 10 years from registration and is automatically repealed the day after the 10‑year period ends (s7; s8). This means compliance obligations begin at a delayed date and expire at a fixed date. Projects that bridge the commencement or expiry dates may face discontinuities because the instrument contains no transitional provisions.

2. Spatial definition by dataset (s5(1); Schedule 1): The declared area is defined by reference to a specific GIS dataset held by a Commonwealth department on a particular date (s5(1)). Reliance on an external dataset creates potential uncertainty over exact boundaries unless parties access that dataset. The instrument excludes specific parts of named roads as shown in the dataset (s5(2)), so on‑the‑ground determinations about whether a work area falls inside the declared area will depend on precise GIS overlays. The Schedule 1 map is illustrative; legal boundary determination requires consultation of the referenced dataset.

3. Narrow cultural definition anchored to one tradition (s4): The instrument defines “Aboriginal site” and “Aboriginal object” as those of particular significance “in accordance with Ngarda-Ngarli tradition” (s4). That anchors protection to one named cultural tradition. Activities affecting sites or objects tied to other traditions are not expressly covered by the instrument’s in‑instrument definitions; however other definitions in s3 of the Act may be relevant (s4 Note). Practitioners should note that the instrument’s protection is framed in terms of Ngarda-Ngarli tradition.

4. MAC’s gatekeeper power and lack of procedural detail (s6(2)(c); s4): The MAC can authorise disturbance through “prior written agreement” (s6(2)(c)). The instrument does not state how MAC should exercise that power, what procedural fairness requirements, criteria or timeframes apply, or whether written agreements must be published. That absence leaves scope for uncertainty and potentially contested expectations about the content, duration and conditions of any approval from MAC.

5. Industrial gaseous emissions carve-out creates a categorical split (s6(3); s4): The instrument states industrial gaseous emissions are not to be treated as moving, damaging, defacing or otherwise disturbing for the purposes of s6(1) (s6(3)). The instrument defines “industrial gaseous emissions” inclusively (s4). Parties may therefore assume emissions will not attract liability under the declaration; however the instrument does not address other regulatory liability for emissions (for example under environmental protection laws). The categorical carve‑out may produce operational decisions favouring emissions‑based activities as opposed to physical disturbance where that distinction matters.

Compliance under this declaration requires spatial, documentary and process steps, each grounded in the instrument. The following practical measures map to the instrument’s operative obligations and exceptions.

1. Determine spatial applicability using the referenced dataset and Schedule 1 (s5(1); Schedule 1)

   • Obtain and rely on the GIS spatial dataset titled ‘ATSIHP_Declared_Area_Murujuga.shp’ as held by the Department of Climate Change, Energy, the Environment and Water on 10 September 2025 (s5(1)). Confirm exact parcel boundaries, including the instrument’s express exclusions for parts of Dampier Road, Burrup Road and The Esplanade (s5(2)). Use authoritative GIS overlays to determine whether any proposed activity falls inside the declared area.

2. Avoid prohibited physical disturbance unless within an exception (s6(1); s6(2))

   • Plan all works to avoid moving, damaging, defacing, or otherwise disturbing Aboriginal sites or objects within the declared area (s6(1)). If any activity risks such outcomes, consider redesign, relocation, or non‑intrusive methods.
   • If the activity is cultural in nature and will be carried out by Traditional Owners or Traditional Custodians in accordance with Ngarda-Ngarli tradition, document the status of those persons and the customary basis for the activity, as this is an express exemption (s6(2)(a)). The instrument provides no procedural checklist for proving such status; therefore contemporaneous documentation of identity and customary practice is prudent.

3. Obtain prior written agreement from MAC where necessary (s6(2)(c); s4)

   • If the proposed activity would move, damage, deface or otherwise disturb a protected site or object, secure “prior written agreement” from the Murujuga Aboriginal Corporation (MAC) before commencing the activity (s6(2)(c)). Treat MAC’s written agreement as a necessary legal shield against liability under the declaration.
   • Obtain a written instrument signed by authorised officers of MAC that describes the authorised disturbance, dates, conditions, mitigation measures, and any remediation obligations. Because the declaration does not stipulate form, content or timeframes for MAC agreements, parties should negotiate specific terms and retain originals.

4. Accommodate emergency services exemption (s6(2)(b))

   • For activities involving emergency responses, record the factual circumstances demonstrating that actions were by emergency services personnel “acting in the course of their duties” (s6(2)(b)). Keep incident reports, command logs, or other documentary evidence to support reliance on the emergency services exemption.