NSW proposes major reforms to protection of Aboriginal cultural heritage

By Nick Thomas, Mark Geritz, Tosin Aro, and Aaron Moss

01 Mar 2018

By providing added clarity and introducing tailored dispute resolution and appeal processes, the new consensus-based model should increase certainty for proponents in developing their projects, and is more reflective of similar regimes in other jurisdictions.

Proponents of major projects will be required to engage earlier and more purposefully with respect to Aboriginal cultural heritage (ACH) under significant reforms proposed by NSW's draft Aboriginal Cultural Heritage Bill 2018.

The long road to reform

In NSW, matters of ACH are regulated under the provisions of the National Parks and Wildlife Act 1974 (NSW) (the NPW Act), the oldest ACH legislation in Australia. Since the drafting of these provisions in the 1970s, values and attitudes to the protection of ACH have developed significantly, leaving the NPW Act sorely in need of reform.

The Aboriginal Cultural Heritage Bill 2018 (the Reform Bill) represents the final stage of a seven-year process designed to deliver this reform. Building upon a series of public consultations and recommendations made by the Independent Aboriginal Cultural Heritage Reform Working Party, the Reform Bill presents a vision of "a transformative, contemporary and respectful vision for the management of Aboriginal cultural heritage in New South Wales".

Although this vision has been consistent throughout the reform process, the Reform Bill departs significantly from both the existing system of ACH management set out in the NPW Act, and from the previous model circulated in the NSW Government's 2013 draft reform framework.

What's changing?

In short, the Reform Bill proposes a more sophisticated and bespoke system of cultural heritage assessment for projects, with ACH values to be integrated into the development consent process. For many proponents, this will require deeper attention to ACH matters, much earlier in the timeline of their project.

New authorities

Central to the revisions proposed in the Reform Bill are two key bodies. Firstly, the Reform Bill proposes to establish a state-wide "ACH Authority" comprised exclusively of Indigenous Australians. Unlike the existing Aboriginal Cultural Heritage Advisory Committee, the Authority is to be vested with decision-making authority and will be the government agency responsible for implementing the ACH Act. The Authority will be advised and supported by Local ACH Consultation Panels made up of individuals appointed by the Authority in accordance with procedures to be publicly notified.

A new assessment framework

The Reform Bill proposes to replace the NSW Government's Due Diligence Code of Practice for the Protection of Aboriginal Objects in New South Wales with a "four-step" assessment pathway.

Supported by a revised ACH Information System database and a new suite of authorised ACH maps, the proposed assessment pathway will require proponents to review ACH maps and consult with the Local Panel to identify applicable ACH values prior to applying for development consent. Where potential ACH values are identified, proponents must work with the Local Panel to scope proposed impact and management activities, before providing an Assessment Report to the Authority. The level of detail and investigation required in this report will vary in response to the specific risk to ACH values posed by the project.

ACH Management Plans to replace Impact Permits

Under the Reform Bill, the current system of Aboriginal cultural heritage impact permits (AHIPs) will be abolished. In their place, proponents will be required to enter into, an obtain the Authority's approval of, "ACH Management Plans" for their projects. Management plans will specify ACH actions (which are then covered by the approval), and secure agreed obligations from the proponent, which may include conservation measures or actions (similar to Cultural Heritage Management Plans in other jurisdictions and ILUAs in the native title context).

ACH Management Plans must be negotiated by the proponent and the relevant Local Panel. Once the Local Panel has consented to an ACH Management Plan, the draft plan is submitted to the Authority for review and approval. Harm to ACH values caused by actions undertaken in compliance with an approved ACH Management Plan will not constitute an offence under the ACH Act.

The Reform Bill contemplates that ACH Management Plan negotiations, and determinations of the Authority, will be subject to mandatory timeframes fixed in response to the risk profile of the development.

If agreement on a draft ACH Management Plan cannot be reached within these timeframes, the Local Panel is deemed to have refused its consent, and proponents may directly request the Authority to approve the ACH Management Plan. Similarly, If the Authority refuses to approve a draft ACH Management Plan within the designated determination period, the Authority is deemed to have refused its approval, and this "deemed refusal" may be the subject of an appeal to the Land and Environment Court.

ACH Management Plans form part of development application

The Reform Bill also proposes to require project proponents to include either an approved ACH Management Plan, or evidence that a refused plan is being appealed or reviewed, alongside any application for development consent. This departs significantly from the existing process which does not require an AHIP to be obtained until after development consent is obtained. Under the Reform Bill, the ACH Management Plan will then form part of the development application, which will be exhibited to the public and will be considered by the consent authority when determining the development application.

What about State Significant Projects?

Under the existing regime, proponents of State Significant Infrastructure (SSI) or State Significant Development (SSD) projects are not required to seek AHIPs, and are exempt from the harm offences set out in the NPW Act. The Reform Bill proposes to retain these exemptions. Accordingly, proponents of SSI or SSD will not be required to negotiate ACH Management Plans or provide draft plans prior to receiving development consent.

Instead, ACH matters will be addressed via the Secretary of the Department of Planning and Environment's environmental assessment requirements (SEARs) for those projects. The Proposal Paper issued in support of the Reform Bill indicates that the SEARs "will be updated to adopt the key features of the ACH Management Plan negotiation process and supporting guidelines".

We expect that the revised guidelines will require a greater focus on negotiation with indigenous peoples, and will provide for "tailored" assessments earlier in the planning process. Accordingly, we expect that SSI and SSD proponents will be required to comply with the essence of the revised pathway identified above.

What about enforcement?

The Reform Bill also proposes a comprehensive suite of compliance and enforcement measures which have developed significantly upon the existing model contained in the NPW Act. All offences currently set out in the NPW Act that relate to Aboriginal cultural heritage will be retained in the Reform Bill. As well as the approved ACH Management Plan defence, a person will have a defence in relation to these offences if, having taken all reasonable steps to determine the matter in accordance with the "ACH assessment pathway code of practice" developed by the Authority (and approved by the Minister), they reasonably conclude that no ACH would be harmed by their activity. However, this does not (as in the case in Queensland, for example) go as far as imposing a positive duty on proponents to take all reasonable and practicable measures to avoid harm to ACH.

Penalty amounts have been markedly increased, with the maximum penalty for "harming" Aboriginal cultural heritage increasing from $110,000 to $1,650,000 (in the case of corporations) under the new scheme. This will be supported by the grant of a wide range of investigative powers to the ACH Authority.

What next?

The Reform Bill promises to deliver "greater certainty", "tailored assessment pathways", and a simplified ACH consultation process to industry stakeholders. Many aspects of the reforms, including the shift to "project-based" rather than "site-based" approvals, and improved mapping and recording systems, are well overdue and worthy of encouragement.

By providing added clarity around who to deal with and the matters necessary to ensure appropriate conservation and management of ACH, and by introducing tailored dispute resolution and appeal processes, the new consensus-based model should increase certainty for proponents in developing their projects, and is more reflective of similar regimes in other jurisdictions. Ultimately, the ability of these reforms to create certainty for proponents with respect to ACH management will depend on the effectiveness and responsiveness of both the Authority and the relevant Local Panels - and remains to be seen.

The draft Bill, the Proposal Paper and an accompanying fact-sheet are available on the Office of Environment and Heritage's dedicated consultation page for review. Public consultation on the proposed reforms will continue until 6 April 2018.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.