The Aboriginal Cultural Heritage Bill 2020 prioritises notification and consultation with Aboriginal people, with a focus on agreement making and the collaborative development of Aboriginal Cultural Heritage Management Plans.
The Bill removes the controversial section 18 approval process and establishes a new tiered assessment system that considers the type of proposed land use activity and the level of impact on the heritage value on the land.
In assessing potential impacts on Aboriginal cultural heritage, the Bill proposes four categories of activities:
- A range of activities including recreational activities, emergency situations and minor developments will be exempt from requiring approval.
- Activities considered to be of minimal impact are also exempt from requiring approval. A proponent can seek confirmation from the Department that the proposed activity is a minimal impact activity.
- A permit is required for low impact activities. Proponents will be required to notify the Local Aboriginal Cultural Heritage Service or relevant Aboriginal parties prior to submitting an application for a permit. The new Council will also publish any permit application online prior to deciding whether to grant the permit.
- An Aboriginal Cultural Heritage Management Plan is required for all activities considered to be of medium to high level impact. Proponents are required to consult with the Local Aboriginal Cultural Heritage Service, or with relevant Aboriginal parties, and to work with those groups who will be a party to any agreed management plan.
- Where agreement cannot be reached, the Bill establishes a Government authorisation process. Proponents will need to provide details of the negotiation undertaken with the Aboriginal parties in order to apply to this process. The Council can act as a mediator to facilitate agreement on a plan between the parties and, where agreement is still not reached, may propose its own plan for the Minister’s authorisation. The Council may also recommend that a submitted plan not be authorised and the Minister will be able to refuse to authorise any such plan.
- Ministerial authorisation of an Aboriginal Cultural Heritage Management Plan will be required for any activities that may cause harm to Aboriginal cultural heritage of State significance.
Activities that could impact Aboriginal cultural heritage will be detailed in the Regulations and are classified as follows:
- Exempt activities include recreational activities such as walking and photography, travelling on existing road or tracks, emergency situations and minor residential developments.
- Minimal impact activities may include light vehicle patrols, metal detecting and maintaining and refurbishing existing facilities, including recreation and camping facilities, water points, signs and other structures.
- Low impact activity means any activity that involves minor ground disturbance, and may include digging pitfall traps and temporary trenches for small animals; and establishing temporary camps for exploration, environment or conservation purposes, where the establishment of the temporary camp does not require the removal of trees or shrubs and does not require any earthworks.
- Medium-High impact activity means an activity that involves a moderate to high level of ground disturbance and may include mechanised ground disturbance, broad acre land clearing in areas where there has been no or minimal previous disturbance and establishment of new infrastructure easements.
The final list of activities will be set out in regulations and the State Government will consult with stakeholders in the development of these regulations.
Proponents will be required to undertake a due diligence assessment in accordance with an Aboriginal Cultural Heritage Management Code (to be developed by the new Council once established), to determine whether the proposed land use will impact Aboriginal cultural heritage and the likely level of impact it will cause.
Details of minimal, low and medium to high impact activities will also be set out in regulations. The Bill sets out the public notice and consultation process that the Council must undertake in the development of the Code and other guidelines.
An Aboriginal Cultural Heritage Management Plan must identify the proponent, the area to which it relates, each Aboriginal party to it and the activity proposed to be undertaken. It must also include an Aboriginal Heritage Impact Statement that describes the potential impact of the proposed activity on any known Aboriginal cultural heritage, set out how the activity will be managed in order to avoid or minimise the risk of harm being caused to Aboriginal cultural heritage, outline the extent to which harm to Aboriginal cultural heritage is authorised, including any conditions to be met. The plan must ensure that contingency arrangements are in place for instances where new Aboriginal cultural heritage is discovered or new information about the significance of existing Aboriginal cultural heritage emerges.
The application for approval of Aboriginal Cultural Heritage Management Plan must include evidence that each Aboriginal party has given informed consent to the plan and include details of consultation that has been undertaken including responses received.
Once appointed, the new Aboriginal Cultural Heritage Council will develop guidelines and standards for management plans, based on the provisions of the new legislation. The supporting regulations will also set out templates for the Aboriginal Cultural Heritage Management Plan.
It is expected that anthropological and environmental surveys may be required by proponents as part of their due diligence, and to support the development of management plans.
Native title agreements or previous heritage agreements between proponents and Aboriginal parties, may be used to satisfy the Aboriginal Cultural Heritage Management Plan requirements in the Bill.
There will be a statutory period to negotiate and reach agreement on an Aboriginal Cultural Heritage Management Plan. The Bill establishes an alternate process for situations where no agreement can be reached The Council will seek to mediate and facilitate an agreement between both parties but may recommend a plan submitted by either party, or develop its own plan for authorisation by the Minister for Aboriginal Affairs.
To assist with the smooth transition from the Aboriginal Heritage Act 1972 to the new system, the Bill includes a number of transitional provisions. These provisions will ensure previous approvals (including Section 18 consents) will continue to be recognised. They will also be tied to the specific proposals they relate to, meaning that they can be transferred to new landowners providing the purpose and footprint of the proposal does not change.
The Bill requires decisions, reasons for decisions and recommendations regarding Aboriginal cultural heritage to be published, and for notification to be given to relevant parties.
A current list of Aboriginal heritage sites is available on the Department of Planning, Lands and Heritage website.