Underwater heritage protection: Australia’s great leap forward has some worrying omissions

Australia enacted new legislation last month to protect the country’s underwater cultural heritage, replacing forty-year-old legislation. Here Danielle Wilkinson and Bob MacKintosh of Wessex Archaeology assess the new framework. Danielle studied and worked in Australia until earlier this year, while Bob is a doctoral researcher at the University of Southampton investigating the implementation of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.

Australia enacted the new Underwater Cultural Heritage (UCH) Bill 2018 on 24th August, replacing the Historic Shipwrecks Act 1976 and extending protection to a wider range of UCH sites. The Act attempts to bring national legislation into line with the provisions of the UNESCO 2001 Convention, and so pave the way for Canberra’s ratification. But despite it being an immense improvement in heritage protection within Australian waters, it may yet fall short of the gold standard that Australian maritime archaeologists were hoping for.

Much like the UK’s 1973 Protection of Wreck Act, the Australian Historic Shipwrecks Act 1976 came into being as a reaction to salvage attempts on significant historic shipwrecks. Public outcry led to the creation of individual State and Territory Acts for the protection of historic shipwrecks, as well as the 1976 federal Act, which established that all historic shipwrecks and their associated relics were of value to all Australians. Unlike UK legislation, it banned salvage of any kind and set standards for managing historic shipwrecks. In 1993, Australia’s Commonwealth Minister further declared blanket protection for all historic shipwrecks over 75 years old as well as their associated artefacts—even if a wreck hasn’t yet been found. This was miles ahead of the protection provided to wrecks in the UK, where only a very small number of designated wrecks are protected. All other UK sites are legally open to salvage and the destruction of their archaeological contexts as long as those salvaged items are reported to the Receiver of Wreck under the Merchant Shipping Act 1995.

Image: SS Wyola at Robbs Jetty, Western Australia 

Rather than focussing just on shipwrecks, the new Act provides that UCH includes “any trace of human existence that: (a) has a cultural, historical or archaeological character, and (b) is located under water” (s. 15.1). This can include “sites, structures, buildings, artefacts and human and animal remains” as well as “vessels, aircraft and other vehicles or any part thereof” with their archaeological and natural context and associated articles (s. 15.2).

The Act, however, only gives automatic protection to certain types of UCH—namely vessels, aircraft and their associated artefacts that have been in Australian waters for at least 75 years. Any other form of site—such as jetties, seawalls, moorings, slips, swimming enclosures and anti-submarine boom nets—need the minister responsible to declare it protected, based on an assessment of significance. This implies that some types of UCH are important and automatically worthy of protection while others are not—and that some sites might not merit protection. This sentiment is not at all in line with the UNESCO Convention, which requires signatories to take a blanket approach to protecting UCH. Australia’s Aboriginal and Torres Strait Islander Heritage Protection Act 1984 already provides nationwide protection to Aboriginal archaeological sites throughout Australian waters. But many site types fall between these stools.

The UNESCO Convention is also about cooperation between countries to protect UCH even beyond a country’s territorial waters. To this end, it sets out procedures for collaborative protection between states. But for these to work, a country must ensure that its nationals and vessels report discoveries even outside their territorial waters. Australia’s new Act does provide that discoveries inside territorial waters must be reported. But it sets out no equivalent reporting procedure for sites in other countries’ waters, or those beyond the jurisdiction of any state.

The shortcomings of the new Act may mean that Australia is not as involved in global cooperation as it should be. But Australia has pioneered UCH protection since the 1970s, and everyone involved in creating the new Act should be congratulated loudly for this major legislative upgrade, which puts Australia even further ahead of the UK. British archaeologists still operate within a system based on salvage law. They can only dream of the automatic protection of all shipwrecks or the legal obligation to report discoveries.

It is time for the UK—and many other countries besides—to follow Australia’s lead.

Edited by John Cooper

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