New Aboriginal Heritage Act has significant effects on Victorian projects

By Christopher Davie.

Key Points:
The most important new feature of the legislation is that every project which requires an Environment Effects Statement under the Environment Effects Act 1978 (Vic) will require an Aboriginal "cultural heritage management plan" to be approved before any planning permit or other statutory authorisation required for the project can be issued.

In May 2006, the Aboriginal Heritage Act 2006 (Vic) (the "AHA") passed both houses of State Parliament. However, it will not come into effect until it is proclaimed.

If and when it is proclaimed, it will have a significant impact on project development in Victoria. The most important new feature of the legislation is that every project which requires an Environment Effects Statement under the Environment Effects Act 1978 (Vic) will require an Aboriginal "cultural heritage management plan" to be approved before any planning permit or other statutory authorisation required for the project can be issued. This approval must be given by every "registered Aboriginal party" for the area affected by the project. If any of these approvals are not given, the only avenue will be an appeal to the Victorian Civil and Administrative Tribunal.

The current legislative maze

At present, Aboriginal cultural heritage in Victoria is regulated both by Victorian statute (the Archaeological and Aboriginal Relics Preservation Act 1972 (the "Relics Act")) and by Commonwealth legislation (the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the "HPA")). The HPA contains, most unusually for Commonwealth legislation, a Part applicable only in one State - Part IIA, which contains special provisions applying only in Victoria. Under Part IIA, among other things, any "licensed inspector" may issue emergency declarations of preservation (not revocable by the Minister) requiring the immediate shut down of any project in Victoria for a minimum period of 30 days. There is nothing to stop an inspector from issuing a "rolling series" of such declarations. It should perhaps be noted that following a declaration made in January 2006 in relation to the King's Domain area in central Melbourne, the Minister sacked all 35 inspectors and has only recently appointed about eight.

It is apparently the intention of the Victorian Government that the AHA will be proclaimed when the Commonwealth repeals Part IIA of the HPA. The Commonwealth Government has stated it proposes to do this during the current Parliament. The proclamation of the AHA will automatically repeal the
Relics Act.

The new Act

From a project perspective, the principal features of the AHA are the following:

Offences: It will be an offence under section 27 "knowingly to do an act which harms Aboriginal cultural heritage", unless the act is done -

• in accordance with a "cultural heritage permit" issued by the Secretary of the Department for Victorian Communities; or
• in accordance with a "cultural heritage management plan" approved by all "registered Aboriginal parties" for the relevant area, or if none of them responds to a request for evaluation of the plan, approved by the Secretary; or
• in accordance with relevant Aboriginal tradition; or
• in the course of conducting a cultural heritage assessment; or
• as a necessary act because of an emergency such as a bushfire or other natural disaster.

Penalties will vary depending on whether, at the time the act was done, the defendant "knew" the thing harmed was Aboriginal cultural heritage [penalty up to $1 million]; "was reckless" as to whether the thing harmed was Aboriginal cultural heritage [penalty up to $600,000]; or "was negligent" as to whether the thing harmed was Aboriginal cultural heritage [penalty up to $300,000].

It will also be an offence knowingly to do something "which is likely to harm Aboriginal cultural heritage", even though no harm to Aboriginal cultural heritage occurs; the penalty will be up to $600,000.

The guardians: The AHA will establish a regime under which any body corporate may apply to the new Aboriginal Heritage Council for registration as a "registered Aboriginal party" for an area. After considering, among other things, whether the applicant is a registered native title holder or registered native title claimant over the area, or a "body representing Aboriginal people with traditional or familial links" to the area, or a "body representing Aboriginal people that has a historical or contemporary interest in the Aboriginal cultural heritage relating to the area" and "demonstrated expertise in managing and protecting Aboriginal cultural heritage in that area", the Council may grant or refuse the application for registration. Importantly, the AHA will permit multiple "registered Aboriginal parties" for the same area of land.

Can you get a "cultural heritage permit"? A cultural heritage permit cannot be issued where an approved cultural heritage management plan (see below) is required. Moreover, any of the registered Aboriginal parties for an area will be able to block the issue of a cultural heritage permit. Under section 40(3), the Secretary will have no power to issue a cultural heritage permit if any registered Aboriginal party for the area objects to the issue of the permit. Under section 121, an applicant for a permit may apply to the Victorian Civil and Administration Tribunal ("VCAT") for review of the Secretary's decision to refuse to issue a permit; but it seems clear that VCAT cannot order the Secretary to do what the Secretary is prohibited from doing, ie. to issue the permit.

New requirement to prepare "cultural heritage management plans" and have them approved: An approved cultural heritage management plan ("CHMP") will be required wherever an Environment Effects Statement is required under the Environment Effects Act 1978, and wherever the regulations so prescribe or the Minister so directs. Where an approved CHMP is required:

• it must be prepared by the project sponsor with the assistance of an appropriately qualified or experienced cultural heritage adviser, and in accordance with standards prescribed by regulation; and
• every "decision-maker" under any other legislation which requires a "statutory authorisation" before the project can proceed (eg. a planning permit, a pipeline licence, etc.) will be prohibited from granting that statutory authorisation unless the CHMP has been approved. Critically, approval must be given by all registered Aboriginal parties for the area, or by VCAT on an appeal if any registered Aboriginal party decides to refuse to approve the CHMP (at the least, such an appeal will involve significant delays to the project schedule).

Powers of Minister and inspectors to issue protection declarations and stop orders: The AHA will perpetuate certain key features of Part IIA of the HPA, in that the Minister will be able to make a "protection declaration" in relation to an Aboriginal place or object where he or she is satisfied that the place or object is of cultural heritage significance to Aboriginal people. A "protection declaration" may be interim (expiring three months, or such other period as is specified by the Minister, after it is made) or ongoing. Further, the Minister or any appointed "inspector" will be able to issue a "stop order",  freezing a project for up to 30 days, if the Minister or inspector is satisfied there are reasonable grounds for believing that the project is harming or likely to harm Aboriginal cultural heritage. It will be an offence, the penalty for which is up to $1,000,000, to contravene a stop order or a protection declaration. These provisions largely mirror what is in Part IIA of the HPA (although the penalties are substantially increased), and will effectively put Victoria back on an equal footing with the other States in relation to the Commonwealth law relating to Aboriginal cultural heritage protection.

Cultural heritage permits or management plans no guarantee: The powers of the Minister to issue protection declarations and stop orders, and the powers of inspectors to issue stop orders, will apply whether or not the activities concerned are being done in conformity with a cultural heritage permit or an approved CHMP. Hence, obtaining an approved CHMP or a cultural heritage permit, while it may give protection from criminal liability for harming Aboriginal cultural heritage, gives a project developer no guarantee of being able to carry out its project activities without disruption.

New Aboriginal Heritage Register and who can search it: The AHA will establish a Victorian Aboriginal Heritage Register, recording all known "Aboriginal places" in Victoria, all known private collections of Aboriginal objects in Victoria, all approved CHMPs, cultural heritage permits, and "cultural heritage agreements". To some extent this will replicate the register of archaeological areas and relics maintained by Aboriginal Affairs Victoria under the Relics Act. The new Register will be open for inspection only by limited classes of persons, including registered Aboriginal parties, public servants administering the AHA, cultural heritage advisors for CHMPs, land owners for the area concerned (it is unclear whether this includes Crown lessees or holders of mining or exploration tenements), or qualified cultural heritage advisors appointed by a proposed developer or purchaser of land.

Those who search the Register and find nothing there will not necessarily be protected from prosecution under section 27 if they proceed and ultimately harm Aboriginal cultural heritage, although having done so might afford some defence to a charge of having "knowingly", "recklessly" or "negligently" harmed Aboriginal cultural heritage.

The AHA contains no "cultural heritage duty of care" provisions mirroring those in the Aboriginal Cultural Heritage Act 2003 (Qld), requiring developers to take all reasonable and practical measures to ensure that their activities do not harm Aboriginal cultural heritage. Under the Queensland Act, discharge of that duty affords a "catch-all defence" to a charge of having damaged Aboriginal cultural heritage, but a breach of that duty is itself an offence. Submissions to Aboriginal Affairs Victoria to include such provisions were not adopted.

Conclusion

Once proclaimed, the new legislation will have a significant effect on project development in Victoria, largely because in many cases planning permits and other statutory authorisations will not be able to be issued unless and until an Aboriginal cultural heritage management plan is prepared and approved by all registered Aboriginal parties for the areas affected by the project, or by VCAT if any of those parties refuses approval. Clearly, a timely and carefully-managed approach to gaining the necessary approvals will be critical.

For further information, please contact Christopher Davie.