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:
- 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;
- 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;
- Stage 3: Scoping assessment: proponents and the relevant local consultation panel will be required to assess the likely harm to ACH; and
- 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.