Big changes to Aboriginal Cultural Heritage in NSW are coming: Have your say on the Draft Cultural H

The NSW Government has recently released a draft Aboriginal Cultural Heritage Bill 2018 (ACH Bill) for consultation. The ACH Bill underpins a new framework for the management and conservation of Aboriginal cultural heritage (ACH) in NSW. In September 2017 the Government released a proposal paper which outlined a new system for ACH and invited the public to make submissions on the proposed new scheme. The ACH Bill, the major piece of legislation which will set out the new scheme, has now also been released for public comment.  When the ACH Bill becomes law it will be the first stand-alone legislation for conserving Aboriginal heritage in NSW and will replace Part 6 of the National Parks and Wildlife Act 1974, currently the main piece of legislation governing ACH in NSW.

Overview of the new ACH scheme – what you need to know

Some of the key changes introduced by the new ACH Bill include:

• A new, broader, definition of ‘Aboriginal cultural heritage’ (ACH);
• Greater involvement of Aboriginal people in the decision-making process through the establishment of an ACH Authority, a state-wide government agency which will administer the new legal framework and approve Aboriginal Cultural Heritage Management Plans (ACH Management Plans), which are to replace Aboriginal Heritage Impact Permits (AHIPs);
• The establishment of local consultation panels based on geographic areas or aspects of ACH who proponents must negotiate with as part of the assessment process and the preparation of an ACH Management Plan, if required – this will replace the current requirement for proponents of development that will impact on ACH to identify and negotiate with registered Aboriginal parties (RAPs);
• A new assessment pathway to determine the risk of an activity impacting on ACH (replacing the current ‘due diligence’ defence), which will include four stages:
  • ACH map review to understand ACH risks;
  • ACH preliminary investigation through local consultation panels;
  • ACH scoping assessment;
  • ACH assessment report which will be assessed by the ACH Authority.
• This new assessment pathway will be outlined in a new ACH Assessment Pathway Code of Practice;
• In the event that a proposed development is likely to harm ACH, a requirement for an ACH Management Plan to be approved by the ACH Authority (following consultation and negotiation with the relevant local consultation panel) prior to lodgement of a development application if a development application is required for the development (other than State significant development);
• A more streamlined consultation and approval process, with defined timeframes; and
• The introduction of new information management tools such as mapping tools and strategic plans which can be used to identify if land is affected by ACH, including a proposal for some information to be stored in a ‘restricted’ database.

The ACH Bill – issues to consider

The ACH Bill is intended to be a high level, enabling piece of legislation which establishes the overarching framework for the new ACH scheme.  Much of the detail regarding exactly how the scheme will operate will be contained in the Regulations or policies released by the Authority once it is established.

Nonetheless, those wishing to make a submission on the draft ACH Bill or reforms more generally may wish to consider the following issues:

• The ACH Authority:  the ACH Authority has a large role in ensuring the new reforms are implemented effectively.  The ACH Authority will make key decisions about ACH such as approving ACH strategic plans and will develop the policies and guidelines which will be used to implement the legislation.  It will also be responsible for determining whether to approve ACH Management Plans that have been negotiated between a proponent and the relevant local consultation panel. The ACH Authority will need to be adequately funded and resourced and will need to understand the needs of a range of parties involved in each development proposal;
• ACH local consultation panels: The proposed membership of these panels is uncertain at this stage as are details as to how the panels will operate in practice. In particular the interaction between native title claimants or holders, local Aboriginal land councils and the local consultation panels requires significant consideration to avoid conflict, minimise duplication and maximise the efficiency of the process;   
• ACH Management Plans:  the ACH Bill does not provide detail as to what these plans will look like nor exactly what they will contain or cover. The discussion paper includes consideration of three levels of management plans, depending on the significance and likely impacts of the proposed development, however this is not referred to in the draft ACH Bill. We expect that this issue is likely to be the subject of future policies or guidelines (to be developed by the ACH Authority);
• Mapping tools:  there is uncertainty as to whether the new mapping tool will provide sufficient information for proponents including in respect to the risks associated with particular ACH given the intention for some information to be held in a restricted database;
• Transitional arrangements:  the ACH Bill states that transitional arrangements will be dealt with by the Regulations.  It is important that transitional arrangements for current projects are clear so that all stakeholders understand the process for existing applications and projects; and
• State significant development (SSD):  it is not clear how SSD will be treated as this category of development is exempt from the four stage assessment pathway and the requirements under the Bill to obtain an approval of an ACH Management Plan. It is expected that an ACH Management Plan, or another form of similar document, will need to be negotiated with the relevant local panel as part of the SSD application process, however this is still uncertain at this stage and requires clarification.

What should you do?

These reforms are the most significant reforms to ACH in NSW to date. The new ACH scheme is likely to increase the area of land with ACH obligations in NSW.  However, it also has the potential to provide greater certainty to those carrying out development on land affected by ACH in providing a clearer and more regulated approach to identifying ACH and then managing the development pathway. It is important that those who will be impacted by the new laws consider the Bill and discussion paper in detail and consider making a submission so that as many issues as possible can be dealt with before the scheme becomes law.

Public consultation on the proposed scheme and the ACH Bill closes on 20 April 2018.  We recommend that anyone who carries out a development on land which is likely to be affected by ACH make a submission on the proposed reforms.