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 (this includes collecting artefacts) without prior permission of the NSW Government. The penalties for harming an Aboriginal site (which could include graffiti) are up to $275,000 and one year’s imprisonment for individuals and $1.1 million for corporations.

The most important aspect of the legislation is what is known as ‘due diligence’. If someone is planning an activity that may disturb the ground or old growth trees, they must show that they have taken steps to avoid damaging or harming any Aboriginal site. Therefore including a review of potential Aboriginal heritage issues (whether at desk-top level or up to a full archaeological survey) will ensure Aboriginal sites are not accidentally damaged and the people doing the work (individuals and ‘corporations’) are not liable for prosecution.

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

  • National Parks and Wildlife Act 1974
  • Environmental Planning and Assessment Act 1979

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:

  • particularly significant Aboriginal sites by the Minister for the Environment (s.84),
  • penalties relating to harming or desecrating Aboriginal objects and places (s.86),
  • defences to prosecution and exemptions (s.87), including the process of due diligence,
  • the requirement to notify the Director-General when finding a new site (s.89A),
  • the issue and use of Aboriginal Heritage Impact Permits (AHIP) (s.90),
  • the role of the Aboriginal Heritage Information Management System (AHIMS) (s.90Q), and
  • the Director General’s right to issue stop-work orders, interim protection orders and remediation directions (Part 6a, Division 1-3).

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 the eight partner Council boundaries.

NP&W Act – Section 86 and 87

Under section 86 it is an offence to harm or desecrate an Aboriginal object or a declared Aboriginal place. This section sets out the penalties and regulations (NPW Regulations, Part 8A) and describes what is included and excluded as harm. Penalties exist for individuals and corporations:

Knowingly harming an Aboriginal object: $275,000 (1yr imprisonment) for individuals, $1,100,000 for Corporations

Harming an Aboriginal object: $55,000 for individuals, $220,000 for Corporations

Section 87 provides for defences to harm done to an Aboriginal object if:

  1. it was authorised by an Aboriginal Heritage Impact Permit (AHIP),
  2. due diligence determined that no Aboriginal object would be harmed,
  3. compliance with regulations or an approved code of practice was followed, and
  4. it is shown as a low impact act or omission.

Section 87 also provides exemptions for certain activities, mainly emergency fire fighting or hazard reduction work under the Rural Fires Act 1997, or emergency work under the State Emergency and Rescue Management Act 1989.

Due Diligence

For any activity (such as a development application – DA) that could potentially harm an Aboriginal site, a due diligence process should have been undertaken to ensure Aboriginal heritage sites are not impacted. Carrying out a proper due diligence process provides a defence against prosecution if an Aboriginal heritage object is harmed during works.

The NSW Government has put together guidelines in regard to the process. For more information on this, check their website (www.environment.nsw.gov.au) and the Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW (DECCW, 2010).

NP&W Act – Sections 90 to 90R

These sections provide details about the Aboriginal Heritage Impact Permit (AHIP) system as regulated by the NSW Government. Different sections deal with the application for a permit as well as transfers, refusals, variations, restrictions, conditions, appeals, and other aspects. Section 90Q describes the role of the Aboriginal Heritage Information Management System (AHIMS), which holds the database of recorded Aboriginal site information in NSW.

In short, if Aboriginal objects are present or likely to be present and an activity will harm those objects, then an AHIP application will be required.

NP&W Act Part 6A Stop work orders, interim protection orders and remediation directions

These sections provide details on how the Director-General can make a stop work order (Division 1) to actions that are likely to significantly affect an Aboriginal object or Aboriginal place; an interim protection order (Division 2) for an area of land which has cultural significance; and remediation directions (Division 3) relating to harm to Aboriginal objects and places.

Environmental Planning and Assessment Act (EP&A Act)

The primary function of the NSW EP&A Act is that environmental impacts be considered in land use planning and decision making. Significant amendments took effect on 1 March 2018. One of the revised objects of the Act is “to promote the sustainable management of built and cultural heritage (including Aboriginal cultural 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 3

Part 3 governs the preparation of planning instruments, including the following:

  • Strategic plans (regional, district and local strategic plans)
  • Regional Environmental Plans (REPs)
  • Local Environmental Plans. (LEPs) and
  • Development Control Plans (DCPs)

These planning instruments cover permissible uses and potential constraints on land use. 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 4

This section of the legislation governs the decision making process by consent authorities, including local government, during a development application. Section 4.15 (previously 79C), under Part4, describes types of impact which must be considered before development approval is granted. It states that consideration must be given for the impact of that development on the environment. It is legally understood that this should be taken to include Aboriginal sites and heritage.

Division 4.8 covers the integrated development 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 an Aboriginal Heritage Impact Permit (AHIP) under s.90 of the NPW Act, then the NSW Government becomes an approval body.

It should be noted that land that may initially be considered to allow for Exempt and Complying development (Division 1) may still have Aboriginal heritage potential, in which case should an Aboriginal object be present, the NSW Government may become a consent authority as per Housing Code Exempt and Complying SEPP (State Environmental Planning Policy) 2008 and the NPW Act.

EP&A Act – Part 5

This section of the legislation governs the decision making process by State government (determining) authorities (except for State significant infrastructure) regarding activity approval. In the decision making process, under Section 5.5 (previously 111), it is the State government agencies’ duty to consider environmental impacts; and then under Section 5.7 (previously 112), determine whether the level of impact is sufficient to require the preparation of an Environmental Impact Statement (EIS).

As mentioned in Part 4, ‘environmental impacts’ under the law should be taken to include Aboriginal sites and places. Furthermore, under the NP&W Act someone doing an activity must carry out due diligence to ensure Aboriginal heritage is not harmed by that activity, or have a permit from then NSW Government that permits the harm (see above).

EP&A Act – Part 9

This section gives powers to councils or departmental officers to investigate issues, for example, if it is deemed necessary to do so to inspect work being carried out under a consent, approval or certificate under this Act.

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.