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

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.

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).
6. 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 .

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.

(2)  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.

(3)  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.