Australia: Aboriginal Cultural Heritage Gains Greater Protection in New South Wales

Legally Green
Last Updated: 9 August 2010
Article by Jacinta Studdert

The New South Wales (NSW) Aboriginal cultural heritage regulatory regime is undergoing significant reform with the staged introduction of the National Parks and Wildlife Amendment Act 2010 (Amendment Act). Other changes aimed at environmental protection are also introduced under the Amendment Act, including provisions relating to the regulation of native plants, fauna and threatened species.

Introduced into Parliament following a long consultation period and assented to on 15 June 2010, the Amendment Act amends two related pieces of legislation, the National Parks and Wildlife Act 1974 (NPW Act) and the Threatened Species Conservation Act 1995 (TSC Act)1.

Key changes include the introduction of a strict liability offence into the NPW Act for Aboriginal objects and places, exemption and defence provisions for those offences and new processes for applications for Aboriginal Heritage Impact Permits (AHIP). The amendments are supported by other key regulatory instruments including the Revised Consultation Draft Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW2 (Draft Due Diligence Code of Practice) and the Aboriginal cultural heritage consultation requirements for proponents 2010, Part 6 National Parks and Wildlife Act 19743.

Commencement is to occur in two stages with the first stage of amendments, which relate to a broad range of provisions under the NPW Act such as authorised officer powers and threatened species provisions, commencing on 2 July 2010. The most significant changes, which represent the final stage of amendments, are scheduled to commence later in the year on 1 October 2010.

What amendments have already commenced?

The first stage of amendments, which commenced on 2 July 2010, aim to strengthen enforcement and improve compliance with the NPW Act and the TSC Act. Specific NPW Act amendments include the introduction of:

  • provisions governing National Park Co-Management Boards under Part 4A
  • amendments to the stop work and interim protection orders under Part 6A
  • a new division in Part 6A, Division 3 enabling remediation directions to be issued in relation to damage to reserved land, threatened or endangered species, populations and communities
  • amendments to wildlife management and licensing provisions, including the introduction of continuing offence provisions
  • amendments clarifying that authorised officer powers under the Protection of the Environment Operations Act 1997 (POEO Act) apply to NPW Act offences
  • provisions relating to access roads in National Park Estate lands
  • public register requirements (sections 188F and 188G), and
  • new offence provisions, including offence proceedings, sentencing and court orders under a new Part 15.

Various new offence provisions under the TSC Act were also introduced as part of the first stage of amendments, including evidentiary provisions and Court orders.

Consequential amendments were also made to the National Parks and Wildlife Regulation 2009 (NPW Regulation) upon the commencement of the first stage of legislative amendments on 2 July 2010. It is also anticipated that further amendments to the Regulation will commence in conjunction with the remaining provisions of the Amendment Act on 1 October 2010, as outlined below.

What amendments will commence on 1 October 2010?

Existing offences relating to Aboriginal objects and places will be replaced with new offences, including a strict liability offence, on 1 October 2010 as part of the second stage of reforms, along with offence exemptions and defences.

Additional amendments scheduled to commence on 1 October 2010 include the introduction of new processes for AHIP applications, consultation guidelines to support the AHIP application process and mechanical provisions such as the transfer and variations of conditions of AHIP.

What are the new offences? – Aboriginal objects and places

A strict liability offence for harm to an Aboriginal object, regardless of whether or not the person knew it was an Aboriginal object, is to be introduced on 1 October 2010. The Amendment Act also introduces an offence for harming or desecrating an Aboriginal object in circumstances where the offender knew that the object harmed or desecrated was an Aboriginal object.

Harm or desecration of an Aboriginal place will also be subject to a strict liability offence upon commencement of the remaining provisions of the Amendment Act.

The introduction of strict liability offences will bring the NPW Act in line with other NSW environment legislation and in particular the POEO Act. Maximum penalties for offences have also been increased to align with similar legislation, with the pending introduction of fines of up to $1.1 million for corporations and up to $550,000 and or 2 years imprisonment for individuals.

An individual found guilty of an offence under section 86 of the NPW Act (as amended) relating to Aboriginal objects may be subject to the maximum penalties in 'circumstances of aggravation'. Such circumstances arise where 'the offence was committed in the course of carrying out a commercial activity' or 'the offence was the second or subsequent occasion on which the offender was convicted of an offence' under section 86 of the NPW Act. This concept has only previously been used for environmental offences in limited cases, being littering offences under the POEO Act and fishing offences under the Fisheries Management Act 1994. With the ever increasing emphasis on environmental protection, the State Government may look to impose harsher penalties for environmental offences based on the concept of 'circumstances of aggravation' in the future.

Various exemptions to these offence provisions will also be introduced. These exemptions will relate to:

  • work for the conservation or protection of an Aboriginal object or place that is carried out by an officer of the NPWS
  • emergency bush fire hazard reduction work or work associated with fire fighting or emergencies under the Rural Fires Act 1997 or the State Emergency Rescue Management Act 1989
  • any thing specifically required or permitted under the express terms of a conservation agreement entered into under Division 12 of Part 4 of the NPW Act, and
  • Aboriginal people to the extent to which those provisions would prohibit them from carrying out traditional cultural activities.

Are there any defences? – Aboriginal Heritage Impact Permits and the Due Diligence Code of Practice

It is a defence to a prosecution for any of the offences outlined above if the defendant can show that the harm or desecration concerned was authorised by an AHIP, but only where all the conditions of the permit were complied with.

It is also a defence to a prosecution for the strict liability offence under section 86(2) of the NPW Act relating to Aboriginal objects if the defendant shows that they exercised due diligence to determine whether the act or omission constituting the alleged offence would harm an Aboriginal object and reasonably determined that no Aboriginal object would be harmed.

Importantly, in determining whether the act or omission constituting the alleged section 86(2) offence harmed an Aboriginal object, compliance with requirements prescribed in either a regulation, or a code of practice adopted by a regulation, will be taken to constitute due diligence.

The Draft Due Diligence Code of Practice has been prepared in anticipation of the due diligence defence being introduced under the NPW Act. The Draft Due Diligence Code of Practice, which has also been subject to public consultation, sets out the reasonable and practicable steps which individuals and organisations need to take in order to:

  • identify whether or not Aboriginal objects are, or are likely to be, present in an area
  • determine whether or not their activities are likely to harm Aboriginal objects (if present), and
  • determine whether an AHIP application is required.

Other defences can be created by regulation for 'low impact' acts or omissions, which may include activities such as maintenance, however this is only if the Aboriginal Cultural Heritage Advisory Committee has been consulted before making such a regulation.

As noted above, further amendments to the NPW Regulation are expected to commence in conjunction with the remaining provisions of the Amendment Act on 1 October 2010. These proposed amendments are set out in the Consultation Draft National Parks and Wildlife Amendment Regulation 2010 and include, in particular, amendments to adopt a final version of the Draft Due Diligence Code of Practice.

What changes are occurring to Aboriginal Heritage Impact Permits?

New processes for AHIPS applications will also be introduced upon the commencement of the remaining provisions of the Amendment Act on 1 October 2010. These include new consultation guidelines and new mechanical provisions that manage matters such as the transfer and variations of conditions of AHIPS.

These amendments will also be supported by amendments to the NPW Regulation as outlined in the Consultation Draft National Parks and Wildlife Regulation 2010. As currently drafted, the draft regulation specifies the community consultation process which must be undertaken before a person makes an application for an AHIP, requires an AHIP application to be accompanied by a cultural heritage assessment report, and sets out the requirements for such a report.

What do you need to do?

Companies or individuals undertaking new projects or works, including those involved in the mining and energy sector, should ensure that they are aware of the new legal obligations and in particular, requirements relating to Aboriginal objects and Aboriginal places.

In addition to offences attracting higher penalties than previously prescribed under the NPW Act, the introduction of strict liability offences highlights the importance of due diligence. It is therefore highly recommended that environmental management systems including management plans and procedures are updated to reflect due diligence measures under the NPW Act which provide a specific defence. Also essential is employee training to ensure employees are aware of these changes and any due diligence measures adopted are in accordance with the Due Diligence Guidelines and are subsequently implemented.

If you would like more information in relation to the implications of the Amendment Act please contact a member of our climate change team.

1 together with consequential amendments to various other Acts including the Environmental Planning and Assessment Act 1979 and the Lord Howe Island Act 1953.
2 prepared by the Department of Environment, Climate Change and Water, dated 24 February 2010.
3 prepared by the Department of Environment, Climate Change and Water, dated April 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jacinta Studdert
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