Aboriginal Cultural Heritage reforms: 6 Things You Need to Know

By Nari Sahukar, Rachel Walmsley and William Field-Papuga

27 March 2018

EDO NSW welcomes the release of the Draft Aboriginal Cultural Heritage Bill and the opportunity it holds for Aboriginal governance and heritage management. Our key concerns with the Draft Bill relate to ministerial discretion, effective resourcing, major project exemptions and inequitable appeal rights. We continue to consult closely with Aboriginal people on the Draft Bill and reform proposals.

Update: EDO NSW submission on the draft Bill now available here. Comments close 20 April 2018.

Whale_caves_near_Wollongong_Mark_Holden560.jpg

Whale caves near Wollongong. Photo Mark Holden.

What’s the problem?

Legal protection and management of Aboriginal cultural heritage in New South Wales is long overdue for reform. NSW is the only Australian jurisdiction without standalone cultural heritage legislation. Regulation continues under flora and fauna legislation via the National Parks and Wildlife Act 1974 (NSW), at great offense to many Aboriginal people.

The current law also lacks a formal role for Aboriginal people to manage and protect their cultural heritage and restricts the meaning of Aboriginal cultural heritage to places and objects. This so-called ‘stones and bones’ approach doesn’t recognise Aboriginal people’s living culture and identity that is connected to their lands, songlines and spirituality.

In practice, the current approach to impact assessment mostly involves issuing Aboriginal Heritage Impact Permits (AHIPs) to adversely affect or destroy Aboriginal cultural heritage. There is limited upfront planning, outdated mapping and AHIPs are routinely granted. Between 2013 and 2015, 190 AHIPs were issued without any refusals.[1] In addition, major projects are exempt from AHIPs and open to broader agency discretion.      

What’s on the table?

To address some of these issues the NSW Government is consulting on new standalone legislation, the Aboriginal Cultural Heritage Bill 2018 (‘Draft Bill’). The Draft Bill would establish a new Aboriginal Cultural Heritage Authority (‘ACH Authority’) led by Aboriginal people.

The Draft Bill includes broader definitions of Aboriginal cultural heritage, new governance arrangements for state and local Aboriginal bodies, new systems for mapping important locations and staged impact assessment pathways.

In place of AHIPs, where development proposals affect cultural heritage, the ACH Authority would oversee new Aboriginal Cultural Heritage Management Plans. These plans will be negotiated and (preferably) agreed between development proponents and Local Aboriginal Cultural Heritage Consultation Panels (‘Local Panels’). Management plans would then be submitted with a development application, prior to any development consent. Currently, AHIPs may be issued after development consent is granted, so upfront management plans are a positive step forward.

Although the Draft Bill establishes the new framework, many of the practical details will be left to future regulations, policies and codes of practice. This includes vital processes for nominating and appointing members of the ACH Authority and Local Panels;[2] Local Panel operating procedures and administrative support;[3] and resourcing to and from the proposed Aboriginal Cultural Heritage Fund.[4]  

A Government consultation paper was released in September 2017, but a Draft Bill to give effect to the proposals was delayed until late February 2018. The Government proposed a further eight weeks for the public to finalise their comments and submissions, which are due by Friday 20 April.

The NSW Office of Environment and Heritage (OEH) is running public workshops on the Draft Bill throughout March and April 2018, with Aboriginal facilitators. Register here. The Government has also released a guide to the Draft Bill.  EDO NSW is also briefing communities and preparing independent guidance during the consultation period – see links below and RSVP for an EDO NSW workshop here.

What to look out for in the Draft Bill

In our view, six key issues to consider when commenting on the new proposed laws are:

  1. New definition of Aboriginal cultural heritage – and how it applies
  2. New institutions are welcome, but critical decisions are left to the Minister’s discretion
  3. Resourcing and membership of Aboriginal governing bodies
  4. Exemption of major projects from protection standards and harm offences
  5. Up-to-date mapping system
  6. Developers’ review and appeal rights disadvantage Aboriginal voices.

EDO NSW is looking very closely at the Bill and listening to Aboriginal people, including our Aboriginal Advisory Committee, as we write our own submission.

1. New definition of Aboriginal cultural heritage – and how it applies

The new definition of Aboriginal cultural heritage encompasses tangible and intangible aspects. In addition to Aboriginal objects, places and ancestral remains, cultural heritage is defined to include ‘living, traditional or historical practices, representations, expressions, beliefs, knowledge or skills’ and ‘the associated environment, landscapes… and materials’ that ‘Aboriginal people recognise as part of their culture and identity.’[5]

The Draft Bill proposes that intangible heritage (including intellectual creation or innovation) can be registered to limit its commercial use by agreement with the registered knowledge holders.[6] The practical challenges of protecting intangible heritage will benefit from hearing from Aboriginal people and other experts in the field and understanding Aboriginal needs and aspirations in this area.

Expanding the current definition of Aboriginal cultural heritage and recognising that this heritage belongs to Aboriginal people are positive steps in the Draft Bill.[7] But it’s very important to understand how (and whether) these definitions translate to protections in the Bill – including ‘declarations’ of Aboriginal cultural heritage (such as important places and landscapes), the mapping of heritage and offences for harm. These are touched on below.

The Draft Bill would also grant Aboriginal people greater autonomy over their own cultural heritage by transferring ownership, care and protection of certain objects and ancestral remains to the ACH Authority, on Aboriginal peoples’ behalf.[8] The actual mechanisms for transferring ownership, and for repatriation, will require further engagement and sensitivity, recognising local Aboriginal groups with intimate connections to that heritage.

2. New institutions are welcome, but critical decisions are left to the Minister’s discretion

The ACH Authority and Local Panels will increase Aboriginal representation and responsibility. But the Draft Bill leaves the Minister with too much discretion around pivotal decisions. This does not sit well with the aims of the Draft Bill, or the reforms, which include ‘B: Decision-making by Aboriginal people’.

Under the Draft Bill, as now, the Minister would decide whether to approve ‘Declared’ Aboriginal Cultural Heritage, based on the ACH Authority’s recommendations.[9] The Minister’s discretion is absolute. There are no binding criteria to consider. Unlike other decisions there is no timeframe for the Minister to make a declaration. We know from experience that without clear accountability, cultural heritage nominations can take years to process. Finally, there are no merit appeal rights if Aboriginal people are not satisfied with the decision. While the Draft Bill protects Aboriginal objects, ancestral remains and Aboriginal places currently listed against harm[10], anything else is ultimately subject to the Minister’s discretion.

Similarly, the Authority may only recommend that the Minister issue an ‘interim protection order’ to protect a heritage area facing threats from development.[11] The Minister still holds ultimate discretion. Landholders would have rights to appeal against an interim protection order, but Aboriginal groups could not appeal if the Minister refused to issue one.[12]

Other ministerial powers relate to finalising maps, overriding conservation agreements, and making codes or regulations for additional defences. [Draft Bill e.g. sections 20, 34, 35, 41, 43]

On a positive note, the ACH Authority itself may issue short-term ‘stop work orders’ to prevent or suspend actions that may breach the ACH Act. The Authority could also issue remedial orders to repair harm and would be responsible for investigation and enforcement.

The proposed process for declaring Aboriginal heritage may reflect the discretionary approach of the NSW Heritage Act 1977, but a 40-year-old European heritage law is not an up-to-date model for Aboriginal heritage protection. The Bill needs to reflect modern best practice and meet the aims of the reforms to give Aboriginal people genuine control over their cultural heritage.

The ACH Authority should have the power to declare heritage based on clear criteria and to issue the full suite of protection orders. Best practice laws would also afford due process, procedural fairness and equity for landowners and Aboriginal people. In these areas the Draft Bill leaves room for improvement.

3. Resourcing and membership of Aboriginal governing bodies

Local Consultation Panels would play a key role in the new framework. Their resourcing needs to be clarified and resolved as a priority. Well-resourced Local Panels could fully participate in management plan negotiations, informed by technical knowledge as required. Local Panels must have sufficient time, staff and expertise to independently conduct their roles. This would create an equal balance of power with well-resourced and experienced development proponents.

Similarly, as the ACH Authority would be responsible for upfront oversight of Management Plans, back-end investigation and enforcement action, it must be adequately resourced to reject unacceptable impacts and respond promptly to offences.[13]

Equally important is how the ACH Authority, Local Panel members and support bodies are nominated and appointed to represent the diverse views of Aboriginal communities. This is open to consultation and it’s important that Aboriginal views take precedence. Consultation notes say the Minister will formally appoint Authority members through a ‘community-driven process’.[14] However, the Draft Bill also enables the Minister to remove members at will.[15] The Bill needs more safeguards to support Aboriginal trust in the Authority’s independence.

4. Exemption of major projects from protection standards and harm offences

The Draft Bill continues to exempt major development proposals from standard assessment pathways, management plans and harm offences.[16] This includes State Significant Development such as mining, gas and heavy industry and State Significant Infrastructure such as ports, pipelines, major roads and rail.

Without earlier engagement and better upfront planning, major projects will continue to cause long-term impacts, disputes and anguish at the loss of Aboriginal heritage. Many of our clients can attest to these concerns, and they have been strongly expressed at the Government’s workshops.

We understand that the ACH Authority will be consulted on major project assessment (as the OEH is now), but the Draft Bill does not clearly set out the process for the community to understand this or give feedback. Nor is there a clear reason for exempting major projects from offence provisions. In our view, if it is accepted that major projects can be prosecuted for unauthorised pollution, the same standard should apply to unauthorised harm to Aboriginal heritage.

Any reforms require a strong, upfront role for Aboriginal participation in decision-making on the largest and highest-risk development proposals. These processes are in greatest need of transparency, accountability and good planning to avoid and minimise harm. 

The Bill also needs to clarify how the staged assessment pathways and management plans will apply to government works and other infrastructure, mining and gas exploration (‘Part 5 activities’ under planning law) and the expanding field of ‘complying development’.[17] As a starting point, any activity that could destroy or diminish heritage values deserves scrutiny.

5. Up-to-date mapping system

To work out what areas are known or likely to have heritage values, a new Aboriginal Cultural Heritage Information System is proposed to replace the existing AHIMS database. Importantly, the ACH Authority will administer the new mapping system and Local Panels will provide the draft maps.[18] A proposed binary map would highlight areas where Aboriginal cultural heritage exists or is likely to be found. These sensitive areas will alert developers to the need to contact the Local Panel, follow the staged assessment pathway and if impacts are likely, negotiate an ACH management plan.[19] 

Behind the maps, a restricted access database and a public portal controlled by the ACH Authority are proposed to protect sensitive and confidential information.[20]

The new mapping system is an integral part of the reforms. Its security and accuracy must be well established so that Aboriginal communities feel culturally safe about sharing the location of their heritage.    

6. Developers’ review and appeal rights disadvantage Aboriginal voices

If a development proponent and Local Panel can’t reach agreement on an ACH management plan in time, the proponent can request the ACH Authority to approve the plan in any case, after advice from both sides.[21] If the proponent is still unhappy with the Authority’s decision (or if a decision isn’t made on time), the Draft Bill gives them a further right to challenge the Authority’s refusal in the Land and Environment Court.[22] This permits a non-Aboriginal court to review and remake the Aboriginal Authority’s decision.[23] It also gives development proponents two avenues of review and appeal that are not available to the custodians of Aboriginal heritage.  

Yet Aboriginal groups might equally disapprove of the ACH Authority’s decision on a management plan, particularly if the Local Panel did not agree to it or needed more time to decide. It is unfair and unjustified that Aboriginal groups have fewer rights than development proponents under the Draft Bill. Protecting cultural heritage should have at least the same priority as development interests. This would recognise, as the Draft Bill otherwise aims to do,[24] that cultural heritage is intrinsic to Aboriginal people’s identity and wellbeing and contributes to the richness of NSW heritage as a whole.   

What happens next?

Public consultation on the Draft Aboriginal Cultural Heritage Bill and Consultation Paper is open until 20 April 2018.  Once the consultation period closes, there is a limited time for amendments before the Government introduces a revised Bill to NSW Parliament.

As an independent community legal centre, EDO NSW considers these six issues are priorities to address. But there are many other aspects to the Draft Bill, so it’s important to get involved and have your say. EDO NSW will publish a comprehensive submission and other resources before the due date.

Authors: Nari Sahukar is a Senior Policy and Law Reform Solicitor at EDO NSW.

Rachel Walmsley is the Policy and Law Reform Director at EDO NSW.

William Field-Papuga was an Aurora Project intern with EDO NSW from January-March 2018.

The authors also acknowledge the assistance of former EDO NSW Solicitor, Ross Mackay

See footnotes further down.

Further information:

[1] A proposed new legal framework: Aboriginal cultural heritage in New South Wales discussion paper 

[2] Draft Aboriginal Cultural Heritage Bill 2018 (NSW) (‘Draft Bill’) section 8(3), 15.

[3] Draft Bill section 17.

[4] Draft Bill section 66.

[5] Draft Bill section 4.

[6] Draft Bill section 38.

[7] Draft Bill section 3(a)(i) and s 4.

[8] Draft Bill section 24(1).

[9] Draft Bill section 18(1).

[10] Draft Bill sections 39-41.

[11] Draft Bill section 78(1).

[12] Draft Bill section 83.

[13] Draft Bill section 121(1). The Authority may also be exposed to significant costs from inequitable appeal rights (see issue 6)

[14] Draft Bill sections 8 and 15.

[15] Draft Bill, Schedule 1 clause 5(2).

[16] Draft Bill sections 42, 60(2). See also pp 39-40 of the NSW Government Consultation Paper (Sept. 2017).

[17] Draft Bill section 60 (and Note to that section). Complying development requires private certifier approval under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

[18] Draft Bill section 20.

[19] Draft Bill section 55.

[20] Draft Bill section 19(3).

[21] Draft Bill section 49(3)(a).

[22] Draft Bill section 52(1).

[23] Draft Bill section 54(4).

[24] Draft Bill section 3(a)(ii).