Aboriginal Sites and the Law

It is important to be aware of the fact that all Aboriginal sites in NSW are protected under the National Parks and Wildlife Act 1974, and it is an offence to damage or destroy them (includes collecting artefacts) without prior permission of the Director General of the Department of Environment and Conservation (DEC).

The two pieces of legislation that most effect Aboriginal heritage management in NSW are:

National Parks and Wildlife Act (NP&W Act)

There are a number of key sections in the NP&W Act, which are relevant to Aboriginal Heritage. These sections deal with the specific protection of:

These relevant sections are detailed below:

NP&W Act - Section 84

This section provides protection for 'Aboriginal places'. Aboriginal places have been defined by the Act as 'areas of cultural significance to the Aboriginal community'. An area will only be regarded as an Aboriginal Place if the Minister is satisfied that sufficient evidence exists to conclude the area was or is of significance to the Aboriginal community. There are currently no Aboriginal places gazetted within Council's boundaries.

NP&W Act - Section 86 and 87

Under section 86 it is an offence to disturb or excavate land for the purposes of discovering an Aboriginal object, or remove an object from land, without first obtaining permission from the Director General (s.87). This is particularly relevant to the development application (DA) process where archaeological excavation is required to assess an area's Aboriginal heritage potential, and for any activity that would contact Aboriginal rock art or engraving sites.

NP&W Act - Section 90

This section provides protection for all 'Aboriginal objects'. Aboriginal objects have been defined by the Act as 'any material evidence of the indigenous occupation of New South Wales'. This protection is provided regardless of the level of significance (unlike Section 84) or land tenure. Also under this section a developer may seek permission to impact or destroy an Aboriginal object by applying for a Heritage Impact Permit (formerly a Consent to Destroy) from the Director General of the Department of Environment and Conservation.

The legislation does not set up any formal mechanisms for ensuring that areas with potential to contain Aboriginal sites or places are assessed prior to impact. It is the Environmental Planning and Assessment Act which fulfils this role.

Environmental Planning and Assessment Act (EP&A Act)

The primary function of the EP&A Act is that environmental impacts be considered in land use planning and decision making. The definition of 'environmental impacts' in New South Wales includes Aboriginal Heritage.

There are three key sections (along with associated regulations, schedules and guidelines) in the EP&A Act, which are relevant to Aboriginal Heritage.

EP&A Act - Part III

Part III governs the preparation of the following three planning instruments:

These planning instruments cover permissible uses and potential constraints on the land use. When assessing potential uses and constraints during the preparation of a planning instrument, guidelines produced by the Department of Planning New South Wales must be followed. These guidelines specify that Aboriginal sites and places of significance should be assessed as part of the process. Once developed, the planning instruments, such as LEP's, may specify the level of assessment required in relation to environmental assessment or more specifically Aboriginal heritage investigations for development applications.

EP&A Act - Part IV

This section of the legislation governs the decision making process by local government (consent) authorities during a development application. Section 90, under Part IV, lists a number of impacts which must be considered before development approval is granted. Section 90 Subsection (1) 9b states that consideration must be given for 'the impact of that development on the environment (whether or not the subject of an environmental impact statement)'. It is legally understood that s90 (1) 9b should be taken to include Aboriginal sites and heritage.

Part IV also covers the integrated development approvals (IDA) process whereby the approvals of State government agencies are linked to the development consent process. If an Aboriginal site will be impacted by a development, requiring a Heritage Impact Permit under s.90 of the NPW Act, then the Department of Environment and Conservation becomes an approval body.

EP&A Act - Part V

This section of the legislation governs the decision making process by State government (determining) authorities related to activity approval. In the decision making process, under Section 111, it is the State government agencies' duty to consider environmental impacts; and then under Section 112, determine whether the level of impact is sufficient to require the preparation of an Environmental Impact Statement (EIS).

As mentioned in Part IV, 'environmental impacts' under the law should be taken to include Aboriginal sites and places. Furthermore, the Department of Planning New South Wales have developed a set of guidelines for interpretation of Section 112 which requires that Aboriginal heritage is assessed as part of the process.

Other Acts

Other Acts that may be relevant to a particular site within NSW include the Federal Aboriginal and Torres Strait Islander (Heritage Protection) Act and Australian Heritage Commission Act. Further State Acts include the New South Wales Heritage Act and the Local Government Act.

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