New Aboriginal Cultural Heritage Act proposed

Major reforms to Aboriginal cultural heritage (ACH) legislation have been proposed by the NSW Government.  A new Aboriginal Cultural Heritage Act (ACH Act) will replace Part 6 National Parks and Wildlife Act 1974 (NSW) (NPW Act) which relates to Aboriginal objects and places.  The proposed ACH Act will maintain the existing provisions relating to Aboriginal objects and places, and will incorporate new provisions relating to cultural values which are not currently recognised in the NPW Act.  The closing date for public submissions on the reforms is 14 February 2014.

The intention is to update and contemporise the existing legislation, aiming to provide clarity and certainty for Aboriginal people in NSW and to proponents.  The ACH consultation process for major developments will be streamlined and the code-based standards for assessing ACH will result in reduced delays, as there are clear time frames for consultation, development of assessment plans and finalising Project Agreements.

Streamlined process

The introduction of Local ACH Committees will supersede the current requirement for proponents to consult with multiple registered Aboriginal parties.  Each Local ACH Committee will comprise of a maximum of ten nominated people, who have an identified connection to country.  A similar process has been successfully implemented under the Aboriginal Land Rights Act 1983 (NSW), which outlines a process of identifying people who have the association with and authority to speak for Country.

If a project crosses multiple Local ACH Committee boundaries, representatives will form a Regional Project ACH Committee.  The aim is that Local and Regional Project ACH Committees will become a ‘one-stop-shop’ for projects, and will work with proponents to negotiate and agree on outcomes, on behalf of the wider Aboriginal community.

Proponents will also be assisted by the introduction of Local ACH Maps.  These will show areas of high, low and no ACH value, as well as areas where knowledge is incomplete.  Each Local ACH Committee will map where these values are within their region.

A Plan of Management for each Local ACH Map will also be developed, which will outline the specific strategies for managing each type of ACH value identified in the map.  Key ACH priorities will be identified and can be incorporated into individual Project Agreements.  Project Agreements will be negotiated between the proponent and the local ACH Committee, and will be required for certain activities in areas which have been mapped as having incomplete or high ACH values.

Dispute resolution and penalties

It is intended that the proposed ACH Act incorporate dispute resolution processes, as well as appeal processes, however these are still being developed.

Amendments to the NPW Act in 2010 introduced heavy penalties for causing harm to ACH objects and places.  Those penalties, along with the existing offence and defence provisions will be included in the new ACH Act.  New penalties have also been proposed for failure to comply with a Project Agreement and for failure to comply with consultation requirements.

Samantha Daly, Patrick Holland, Brendan Tobin, Kate Swain