The Transparency of Aboriginal Cultural Heritage legislation in the context of Water: ‘Aboriginal object’ or not

It is becoming increasingly accepted around the globe that the shale gas industry has the potential to change the global energy market. With examples like the United States, where shale gas has transformed the energy sector, it is little surprise that Australia is progressively turning its focus on the shale it has in an effort to identify domestic shale gas reserves to meet the current shortage of gas for burgeoning LNG projects. 

With this, however, come unique challenges from a native title and Aboriginal cultural heritage perspective. Shale exploration and development requires large quantities of water. This paper will focus on the issue of using water for shale gas operations in the context of Aboriginal cultural heritage. It will specifically address the question of whether water is an ‘Aboriginal object’, thereby constituting Aboriginal cultural heritage under the different Aboriginal cultural heritage legislation in various states and territories throughout the country.

The paper will outline the arguments for and against the proposition that water is an Aboriginal object under relevant Aboriginal cultural heritage legislation. It will also seek to highlight the difficulties that may arise both in a negotiation process and practically during operations as a result of this debate, and proffer for some suggestions how to overcome such difficulties to the satisfaction of all parties.