The current system
Currently the protection and management of Aboriginal cultural heritage in New South Wales occurs under Part 6 of the National Parks and Wildlife Act 1974 (NPW Act). The following are some of the limitations of the current regime:
- The absence of formalised local arrangements for coordinating cultural knowledge. This often creates uncertainty for those wishing to engage with Aboriginal communities;
- Uncertainty as to the need to apply for an Aboriginal Heritage Impact Permit (AHIP) and the lack of interrelationship with the broader planning system;
- One size fits all approach – there is no separate pathway for smaller projects;
- Uncertain retrospective operation – AHIPs are often applied for once building has commenced. Refining project plans after commencement can increase programming delays and costs; and
- Lack of formal dispute resolution mechanisms – leading to unnecessary delay.
Aboriginal Cultural Heritage Authority and Local Aboriginal Heritage Consultation Panels
The Bill will create new representative bodies for the management of cultural heritage. The first body is the Aboriginal Cultural Heritage Authority. The Authority will be a statutory body with decision-making power. The Authority will be supported by the Local Aboriginal Cultural Heritage Consultation Panels (the Local Panels). These panels will assist the Authority in its decision-making role by negotiating with proponents, advising on Aboriginal cultural heritage within specified regions and making recommendations on proposed developments.
New assessment pathway
The current due diligence guidelines will be replaced by a four-step assessment pathway.
- Review of Aboriginal Cultural Heritage maps – maps will be developed by the ACH Authority that identify whether an area is likely to have Aboriginal cultural heritage. A proponent must contact the ACH Authority if the site is within an area that is identified as ‘sensitive’ or if the proposed activity requires an environmental impact statement. The ACH Authority will then refer the proponent to the relevant Local Panel;
- ACH preliminary investigation – the proponent meets with the Local Panel to understand and discuss the Aboriginal cultural heritage values of a site;
- ACH scoping assessment – the proponent and the Local Panel conduct a scoping assessment and determine the length of negotiation time for the Aboriginal cultural heritage management plan; and
- ACH assessment report – the proponent conducts an assessment and submits the report to the ACH Authority.
Replacement of AHIPs with ACH management plans
Under the current Act, Aboriginal objects and declared Aboriginal places may be destroyed, damaged or moved from the land where a proponent has obtained an AHIP. This permit system will be replaced by Aboriginal Cultural Heritage Management Plans (ACHMPs). These plans will be negotiated between proponents and Local Panels who will then make recommendations to the ACH Authority on whether an ACHMP should be approved or refused. There will be mandatory timeframes for negotiation of ACHMPs that will be determined during stage 3 of the assessment pathway.
Integration with development
Proponents will be required to disclose whether they need to prepare an ACHMP to planning authorities or whether they are exempt. Proponents who require an ACHMP will need to attach a copy of an approved ACHMP to the development application or evidence that a refused ACHMP is under appeal. An approved ACHMP will form part of the development consent.
Dispute resolution and appeals
The proposed Bill will create formal mediation processes for the resolution of disputes in the ACHMP negotiation process.
In the event that an ACHMP is refused by the ACH Authority, a proponent will be able to seek merits review or judicial review of the decision in the Land and Environment Court.
SSD and SSI
The new assessment pathway will not apply to State Significant Development and State Significant Infrastructure. Instead, the Secretary’s Environmental Assessment Requirements under the Environmental Planning and Assessment Act 1979 will be updated to reflect the process contained in the ACHMP negotiation process and supporting guidelines.
The draft Bill presents some welcome changes. Significantly, the Bill clarifies who ‘speaks for country’ in ACHMP negotiations and creates a more transparent pathway for obtaining ACHMPs. These reforms will help build trust between Aboriginal communities and proponents and ensure greater certainty of outcomes. Ultimately, the effectiveness of the proposed regime will depend on the approach and funding of the ACH Authority and the Local Panels.
This article was written by Paul Lalich, Partner and Kat McVay, Solicitor.
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