Australia: The proposed new landscape for the management of Aboriginal cultural heritage in NSW

Background

The NSW Government has exhibited the long-awaited draft Aboriginal Cultural Heritage Bill 2018 (ACH Bill), which will introduce a new legal framework for managing and conserving Aboriginal cultural heritage (ACH) in NSW.

The ACH Bill will replace the current provisions in the National Parks and Wildlife Act 1974 (NSW) and regulation (together, NPW Legislation), and takes on many elements of the current schemes in Victoria, and Queensland.

The ACH Bill will make substantial changes to how due diligence is undertaken for projects in NSW. It is therefore critical that proponents are aware of, and engage with the NSW Government on, the key reforms in the ACH Bill.

Public consultation on the ACH Bill and supporting documents is open until 20 April 2018. Feedback can be provided by attending a public workshop, or making written submissions.

What you need to know

  1. Broader definition of ACH: The more inclusive definition of ACH proposed under the ACH Bill, encompassing intangible aspects in addition to tangible aspects, means that proponents of projects will need to have regard to a larger range of matters, and geographical area than before.
  2. Offences carried over with increased penalties: The current intentional and unintentional offences for harming ACH will continue but with increased penalties and under a new tiered system. The maximum penalty for a corporation for an intentional offence is proposed to be increased from $1.1 million to $1.65 million, while the maximum penalty for an unintentional offence is proposed to be increased from $220,000 to $660,000. The current executive liability provisions holding directors of corporations accountable for offences committed by corporations is also proposed to be carried over to the ACH Bill.
  3. Negotiation of management plans: Proponents will need to undertake an ACH assessment pathway, and where ACH will be harmed, develop ACH management plans (ACHMPs) with the relevant local consultation panel. These ACHMPs will replace the current Aboriginal heritage impact permits (AHIPs) granted by the NSW Office of Environment and Heritage (OEH), and will similarly constitute a defence to an offence for harming ACH. We note that although ACH assessment pathway and ACHMP negotiation process will not expressly apply to State significant development and State significant infrastructure, in practice, proponents will be required to comply with the key features of them through the issue of the Secretary's Environmental Assessment Requirements (SEARs).
  4. Enforcement powers carried over: Theenforcement powers currently available to the Chief Executive of OEH under the NPW Legislation to make stop work orders, recommend the making of interim protection orders to the Minister, and issue remediation directions have been carried over under the ACH Bill. However, these powers are proposed to be vested in a newly established State-wide body of Aboriginal people with responsibility for, and authority over, ACH (the ACH Authority).
  5. However, the ACH Bill also contains changes which are intended to provide the following benefits to proponents:
    1. Greater certainty: Proponents will be able to utilise ACH maps to identify land with known or likely ACH values, and the appropriate ACH assessment pathway, early in the development process. This is intended to provide greater certainty, and reduce the complexity, project delays and associated costs incurred through the current scheme;
    2. Tailored assessment pathways: There will be options under the new ACH assessment pathway to tailor the assessment of ACH, depending on the different levels of risk associated with a proposed activity. This is expected to deliver greater flexibility to proponents; and
    3. Central point of contact: The establishment of local consultation panels is intended to make it clearer to proponents about which entity has the legal authority to speak for Country, and provide more consistent information and advice about ACH values. These panels will replace the currently complex and sometimes difficult process of identifying who speaks for Country based on a list of Registered Aboriginal Parties (RAPs).
  1. Significantly, the commencement of the proposed Act will be staged, such that the proposed operative provisions will not come into force for many years. These provisions will only come into force once the ACH Authority has developed the regulations and guidance documents .

Key reforms under the ACH Bill

Three of the key reforms under the ACH Bill are:

  1. Broader recognition of ACH values

In a major departure from the NPW Legislation which presently only recognises tangible objects, the ACH Bills proposes new definitions intended to more holistically capture the essence of ACH. The proposed definition of ACH is:

Aboriginal cultural heritage is the living, traditional and historical practices, representations, expressions, beliefs, knowledge and skills (together with the associated environment, landscapes, places, objects, ancestral remains and materials) that Aboriginal people recognise as part of their cultural heritage and identity.

Further, the proposed new definition of "intangible" ACH is:

intangible Aboriginal cultural heritage means any practices, representations, expressions, beliefs, knowledge or skills comprising Aboriginal cultural heritage (including intellectual creation or innovation of Aboriginal people based on or derived from Aboriginal cultural heritage), but does not include Aboriginal objects, Aboriginal ancestral remains or any other tangible materials comprising Aboriginal cultural heritage.

Indeed, these would be the first definitions of their kind in Australia.

  1. Decision-making by Aboriginal people

The new legal framework vests the ownership of, and responsibility for, ACH in Aboriginal people. As part of this, the ACH Bill proposes to require proponents to negotiate ACHMPs with Aboriginal people where there will be impacts to ACH. This is a major shift from the current scheme. Under the NPW Legislation, certain Aboriginal objects are deemed property of the Crown, and the responsibility for the care, control and management of ACH rests with the Chief Executive of OEH, who grants AHIPs authorising damage or harm to ACH.

One the key functions of the new ACH Authority will be to establish the local consultation panels. However, as the ACH Bill does not specify how a panel will be composed, it is unclear how the ACH Authority will be able to overcome the present difficulties that can be experienced through the creation of a list of RAP. In particular, where there is a Local Aboriginal Land Council, and native title holders or claimants for the area, the existing complexities and difficulties in identifying who speaks for Country may continue.

  1. New pathway for assessment of impacts to ACH

The proposed assessment pathway contains four stages:

  1. Stage 1: Map review: proponents will need to review the ACH maps to determine whether the project site contains, or is likely to contain, known ACH;
  2. Stage 2: Preliminary investigation: whereknown ACH is located, proponents will need to notify the ACH Authority of the nature of the project and the project site, and consult with the local consultation panel;
  3. Stage 3: Scoping assessment: proponents and the relevant local consultation panel will be required to assess the likely harm to ACH; and
  4. Stage 4: Assessment: proponent will need to assess the likely harm to the ACH, develop options for avoiding or minimising that harm, and provide a report to the ACH Authority.

Where the project will harm ACH, proponents will be required to negotiate ACHMPs with the local consultation panel to authorise that harm. Where an act is authorised by an ACHMP, it will constitute a defence to a prosecution for an offence of harming ACH.

The obligation to follow the ACH assessment pathway and develop ACHMPs will not apply to State significant development and State significant infrastructure. However, the ACH Bill proposes to amend the Environmental Planning and Assessment Act 1979 (NSW) to adopt the key features of the ACH assessment pathway and ACHMP negotiation process, so that, in practice, this requirement will be imposed through the SEARs.

We would be pleased to provide you with more information about the proposed changes and their implications for your project, or to assist you with preparing a submission to OEH.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Noni Shannon
Sonali Seneviratne
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions