2 April, 2018
Aboriginal Cultural Heritage Bill 2018 (NSW) – public consultation draft
What you need to know
The Aboriginal Cultural Heritage Bill 2018 (NSW) (ACH Bill) has recently been released and is open for public consultation until 20 April 2018.
The ACH Bill is the first part of the proposed new legal framework for conserving, managing and protecting Aboriginal cultural heritage in NSW that will, in time, also include regulations, policies and guidelines.
The ACH Bill proposes substantial long-awaited reform to the current system.
The new legal framework will not be "switched on" until all its components have been developed.
This is not expected to occur until 2021. Until then, the current system will continue to operate.
What you need to do
Land users should review the ACH Bill and supporting material carefully and consider making a submission.
Background
The protection of Aboriginal cultural heritage (ACH) in New South Wales is principally provided by the National Parks and Wildlife Act 1974 (NPW Act).
Recognising significant changes in approach to ACH since the enactment of the NPW Act, the NSW Government commenced a review of the effectiveness of the NPW Act regime in 2011. The purpose of the ACH reform process was to develop a more effective and contemporary model for recognising, protecting and managing ACH.
The process of review has been long running: moving through multiple consultation phases, with a set of key proposals put forward in 2013. This most recent draft ACH Bill builds on the 2013 model, and comes after a period of public consultation on a Proposal Paper released in 2017.
The ACH Bill would establish a new model for the protection of ACH, which squarely places decision making regarding ACH with Aboriginal people.
Key features are:
- the establishment of a new statutory authority, the Aboriginal Cultural Heritage Authority (ACH Authority), to oversee the protection and management of ACH;
- the establishment of Local Aboriginal Cultural Heritage Consultation Panels (Local ACH Panels) to provide local ACH expertise and participate in decisions that affect ACH in a particular area;
- a prescriptive assessment pathway which must be followed before an associated application for development consent can be lodged; and
- replacement of the Aboriginal heritage impact permit with an ACH management plan (ACHMP), approved by the ACH Authority.
We look further at the key elements of the ACH Bill below.
What is protected?
One of the objectives of the ACH Bill is to establish effective processes for conserving and managing ACH so as to achieve better outcomes for Aboriginal people and the wider community.
To do this, the ACH Bill adopts an expanded definition of ACH to include more than the objects and places previously protected under the NPW Act.
The new definition of ACH 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".
The expanded definition covers ACH with a clear connection to land such as sacred sites, song-lines and dreaming tracks, plus cultural heritage which may not be linked to specific locations, such as botanical knowledge, songs, and dances.
Despite the broad definition of ACH, only Aboriginal objects and Aboriginal remains are protected from harm irrespective of prior recognition. Landscapes and places having ACH significance must be first subject to a declaration before protection is provided.
As noted, intangible elements of ACH unconnected to land are also in the ACH Bill's scope. Similar to the Aboriginal Heritage Act 2006 (Vic), it will be an offence to use registered intangible heritage for commercial purposes without an agreement with the registered holder. This formal recognition of intangible heritage as valuable intellectual property opens new opportunities for economic development.
Who speaks for country?
A key function of the proposed ACH Bill is to put decision-making around ACH in the hands of Aboriginal people.
The ACH Bill does this by establishing and empowering:
- the ACH Authority; and
- Local ACH Panels.
The ACH Authority is the key to the new framework. It will have a lot to do – administering the Act, entering into conservation agreements, approving management plans, conducting investigations and issuing stop work orders, all while complying with standard governance requirements.
Local ACH Panels will be on the front line. Their primary role will be to manage project assessments along the new four step pathway, and, if necessary, negotiate the terms of an ACHMP with the proponent.
The composition of Local ACH Panels is not prescribed by the ACH Bill. That potentially divisive question is left to the ACH Authority following further consultation. The competing views as to the appropriate level of influence of registered native title claimants and local Aboriginal Land Councils (LALCs) has impeded the current system.
The principles underpinning the boundaries for the Local ACH Panels are also left for further consultation. Given that the ACH Bill refers to Local ACH Panels potentially having responsibility for "aspects" of ACH, it seems that proponents may have to deal with more than one Panel in a geographic area. In our view, the success of the reform will be judged on the legitimacy and reliability of Local ACH Panels in ACH decision making.
The New South Wales Aboriginal Land Council (NSWALC) and LALCs established under the Aboriginal Land Rights Act 1983 (ALRA) will also have a significant role to play. The new framework seeks to tap into the existing LALC structure and ACH functions envisaged for LALCs under the ALRA. It will enable the ACH Authority to delegate certain ACH functions to LALCs (subject to LALCs meeting certain governance and capability criteria). NSWALC will also be represented on ACH Authority and, in all likelihood, there will be LALC members on the Local ACH Panels.
What does the new ACH Bill mean for land users?
The new ACH Bill heralds significant changes to the way that land users need to approach ACH in NSW.
The starting point for all land users will be a process of assessment. If the assessment identifies scope for harm to ACH, the land user will need to negotiate an ACHMP with the Local ACH Panel for approval by the ACH Authority.
ACH assessment pathway
The new assessment pathway has four graduated steps:
- a map review to identify any known or likely ACH in the area of a proposed development – if this is the case, the proponent must proceed to the next step;
- notification to the ACH Authority and a preliminary investigation involving consultation with the Local ACH Panel to ascertain if an ACHMP is required – if this is the case, the proponent must proceed to the next step;
- a scoping assessment to assess the likelihood of any harm to ACH and options for avoiding or minimising the harm – if harm cannot be avoided, the proponent must proceed to the next step; and
- a detailed assessment which must consider in detail the ACH at the site of the proposed activities, the harm to ACH that may be caused, the options for avoiding or minimising that harm and preparation of a report on the assessment pathway and findings.
It appears from the ACH Bill, that the preparation of an assessment report, and its subsequent consideration by the ACH Authority, is only required after the fourth stage of assessment is reached. What is not clear is the extent to which proponents will be able to self-assess. The Local ACH Panels may still need to endorse assessments at steps 2 or 3 that conclude that it is unnecessary to move to the next step in the assessment pathway. Given proponents seem to be required to show that they have followed the assessment pathway when making a development application and that demonstrating completion of the assessment pathway can constitute a defence to the strict liability offence, it will be essential for proponents to keep good records.
Much of the detail of the assessment pathway is to be left to the ACH Assessment Pathway Code of Practice (ACHAP Code). That will be an important document for proponents to review when it is released.
Negotiation and approval of ACHMPs
If a proposed development will result in harm to ACH, this will need to be authorised by a bespoke ACHMP agreed between the land user/proponent and the Local ACH Panel and approved by the ACH Authority.
The negotiations will be guided by the ACHAP Code, and supported by mandatory statutory timeframes.
Helpfully, the ACH Bill allows for the ACH Authority to appoint an independent mediator to assist with the resolution of disputes between a proponent and the Local ACH Panel during negotiations.
The ACH Authority can approve the draft ACHMP, refuse it, or refer it back to the Local ACH Panel and the proponent to consider further matters. If the ACH Authority refuses to approve the ACHMP or does not make a decision in the requisite timeframe, the proponent may appeal to the Land and Environment Court.
An approved ACHMP creates a legal defence against harm offences (provided the proponent has complied with ACHMP). It also provides approval for ACH management actions (which will support planning authorities and guide development assessment).
Links to the NSW planning process
The reformed ACH process is intended to fit in with the existing planning system in NSW in the following ways:
- the new ACH system will not apply to State significant development or State significant infrastructure (this replicates the existing exemptions), or development which does not require consent under Part 4 of the Environmental Planning and Assessment Act 1979. Instead, impacts on ACH will be assessed through the assessment pathway for those types of development, namely compliance with the Secretary of the Department of Planning and Environment's environmental assessment requirements (SEARs); and
- development applications for all other types of development cannot be lodged unless the proponent has gone through the assessment pathway, and any assessment report required has been considered by the ACH Authority. If the assessment establishes that the development will harm ACH, then an approved ACHMP(or, in certain circumstances, a draft ACHMP) must be provided with the application.
It is likely that aspects of the new ACH system will ultimately influence the processes applicable to major projects excluded from the scope of any ACH legislation. Frustratingly, there is no detail on this provided by the Office of Environment and Heritage.
Enforcement
The ACH Bill maintains and builds upon the regulatory aspects of the NPW Act by retaining offences for harming Aboriginal objects, Aboriginal ancestral remains and any other kind of tangible ACH which has been declared ACH by the Minister. As noted, it is to be an offence to use registered intangible ACH without an agreement.
The proposed ACH Bill also sets out an ACH regulatory system which includes stop work orders, interim protection orders and remediation orders. It provides the ACH Authority with strong investigative powers, including the capacity to require information and records and to enter and search premises.
Both the police and the ACH Authority are authorised to bring legal proceedings for offences under the ACH Bill. These proceedings will be brought before the Local Court or before the Land and Environment Court in its summary jurisdiction. The ACH Bill also provides for civil proceedings to be brought to remedy or restrain breaches of the act or the regulation or enforce an ACH conservation agreement or other conservation obligations.
Looks expensive . . .
One topic that has not been well canvassed in the materials for public consultation is the cost.
The very hands on role of the Local ACH Panels at each stage through the assessment pathway suggests an expensive process. The ACH Bill refers to the ACH Fund. It is not clear whether this will be simply a repository of application fees, or it is envisaged that proponents will need to make other payments to the Fund. The ACH Bill contemplates that monies in the ACH Fund may be paid to the ACH Authority's to meet its expenditure. The ACH Authority may be structurally incentivised to levy fees on proponents to cover its operating budget. Looks expensive…
Where to from here?
Ultimately, the ACH Bill is just enabling legislation that will allow the development of the rest of the framework over the coming years. The ACH Bill envisages that the new system will not be "switched on" until the structures it contemplates have had time to become established (which is not expected until 2021).
The key challenges in the proposed model are the creation of an entirely new statutory authority and then the ACH Authority's ability to quickly develop its processes and master its many and varied functions. Its hardest task is likely to be developing a network of reliable Local ACH Panels with Aboriginal community legitimacy.
Public consultation on the ACH Bill is open until 20 April 2018. The Bill and supporting documents (including a Proposal Paper and factsheet) are available on the OEH website.
For further information, please contact:
Tony Denholder, Partner, Ashurst
tony.denholder@ashurst.com
