Indigenous cultural heritage impacted by development applications (2023)

Planners and developers need to understand the legal obligations regarding Aboriginal objects and sites that are identified before developments, and steps that can be taken to protect Aboriginal places and objects.

Beyond the legal requirements, where cultural heritage exists or may exist, early and ongoing meaningful engagement with Indigenous representatives should guide decisions and actions.

Law reform in this area, long overdue, has been proposed, and may impact future projects.

Protection of Aboriginal objects and places

Places and objects of significance to Indigenous people are protected in NSW by a combination of:

  • Declaration of Aboriginal places by the Minister
  • Offences regarding harming objects and places
  • Identification by being mapped and listed in local environmental plans
  • Aboriginal areas of cultural significance can be reserved for preservation and protection purposes.

(A consideration of other protection or land rights mechanisms under the Aboriginal Land Rights Act or Native Title Act is beyond the scope of this article).

NSW legal requirements

The key requirements in NSW under which impact of development on Aboriginal objects or places of significance must be assessed are in the Environmental Planning and Assessment Act 1979 (EP&A Act) and National Parks and Wildlife Act (NPW Act). These require applicants to identify and assess potential Aboriginal objects or sites, consider the impacts and obtain and comply with permits.

The starting point is that it is an offence under the NPW Act to harm an Aboriginal object (knowingly or not) or harm or desecrate an Aboriginal place. Some of these offences are strict liability, and all carry significant penalties.

It is a defence to a prosecution if it can be shown that the harm or desecration was undertaken in accordance with an Aboriginal Heritage Impact Permit (AHIP).

This means that if the development being planned may cause harm to an Aboriginal object or place, an Aboriginal Heritage Impact Permit (AHIP) is required from Heritage NSW (s 90A National Parks and Wildlife Act 1974).

In addition to an AHIP, development consent is likely to be required. Under most local environmental plans (LEPs) development consent is required if it is proposed to demolish, move or alter the exterior of, an Aboriginal object (or heritage item or building, work, relic, or tree within a heritage conservation area) (for example see the requirement in the Standard Instrument LEP, Heritage Conservation provision (clause 5.10)).

If an AHIP is required, the development application may be dealt with as integrated development in some instances.

Notably, there are some exemptions to the requirement to obtain an AHIP for some categories of development.

Where an object or place is identified after a development application is lodged (for example in the course of works) mandatory notification requirements apply.

How do you know if an Aboriginal object or place is on a site

The threshold of ‘knowing’ when an Aboriginal object exists on land prior to the development application places a burden on the applicant to understand where there may be an Aboriginal object on land to which the development application applies.

An initial due diligence review includes checking databases to find any registered significant objects or sites:

  • Check the Aboriginal Heritage Information Management System for Aboriginal places of significance (AHIMS) online;
  • Check the environmental planning instrument, heritage schedule and heritage map for any Aboriginal objects and Aboriginal places of heritage significance that have been identified; and
  • Review the listed Aboriginal places under the National Parks and WiIdlife Act.

Bear in mind the limited nature of these databases means that just because an object or place is not listed doesn’t mean it is not of significance to Indigenous people. Even if no object or place is identified on AHIMS, (depending on the project and location) it is important to check with a specialist consultant, and consult with local Indigenous groups and Land Councils to scope out the history of the area to determine likelihood of the existence of objects or sites of significance and the potential for impact.

Following and implementing the Due Diligence Code of Practice for Protection of Aboriginal Objects in NSW published by the Department of Environment, Climate Change and Water on 13 September 2010 may also help with ensuring adequate due diligence.

Failure to undertake the due diligence can have significant repercussions, both for the Indigenous people with connections to the object or place, and the person undertaking the development.

In Chief Executive, Office of Environment and Heritage v Clarence Valley Council [2018] NSWLEC 205, the Court considered a case where Council lopped a scar tree and was found to have caused harm to an Aboriginal object. The scar tree had been registered on AHIMS and had therefore been identified as an object under the NPW Act prior to actions of the Council. Other than issuing a penalty of $300,000 to the Council, the Court found that the Council should have been aware of the AHIMS register and should have undertaken appropriate due diligence before the harm took place. This case is a good example of what can happen if proper due diligence is not followed.

What happens if an Aboriginal object is found during development

If an Aboriginal object is discovered after the development application is made, the applicant may apply separately to Heritage NSW or resubmit the application as integrated development to the Council.

Mandatory reporting requirements apply in relation to objects or places of significance discovered.

Guidance

The legislation provides some high level guidance on an approach to indigenous cultural heritage in the context of development proposals.

An object of the NPW Act is the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to places, objects and features of significance to Aboriginal people.

A guiding object of the Environmental Planning and Assessment Act (EP&A Act) is to promote the ’sustainable management of built and cultural heritage (including Aboriginal cultural heritage)’.significance’. These objectives must be taken into consideration in any application that may impact on Aboriginal objects or places.

Matters that must be taken into account when determining an application for an AHIP include:

  • practical measures that may be taken to protect and conserve Aboriginal objects or places, or avoid or mitigate actual or likely harm;
  • the results of consultation with Aboriginal people regarding the objects or places.

In designing a development that has the potential to impact on a known Aboriginal object or place, practical measures to avoid harm should clearly be actively pursued.

Future reforms

Reforms were flagged in the Aboriginal Cultural Heritage Exposure Bill in 2018. The Exposure Bill recommended standalone legislation, the introduction of a new definition of Aboriginal cultural heritage, an Aboriginal Cultural Heritage Council and also the introduction and overhaul of a new AHIMS or alternative information management system for Aboriginal cultural heritage (which appears to be underway from recent media reports).

The Connecting with Country Draft Framework within the aegis of the Government Architect NSW also provides guidance. Although not integrated within planning system (due in part to the recent decision to not proceed with the State Environmental Planning Policy (Design and Place) which may have had specific regard to the framework), it is a policy a consent authority could have regard to in order to guide process and decision making.

Summary

Planners should be aware of obligations under the EP&A Act, environmental planning instruments, and NPW Act regarding Aboriginal objects and sites.

At the start of a project a basic due diligence includes:

  • Undertake a search of the AHIMS register, and any relevant mapping under the applicable local environmental plan; and
  • Identify whether a place is an Aboriginal place within the meaning of the NPW Act or within an environmental planning instrument.

Even if objects or significant sites are not identified on relevant registers, due to the limits of these systems, consultation with local Aboriginal communities or land councils may be required to ensure that Aboriginal objects and places are identified and appropriately managed. Sufficient time should be allowed to ensure this is carried out appropriately.

Finally, future reforms should be considered as part of ‘horizon checking’ when considering whether the Aboriginal cultural heritage landscape and planning requirements will have impacts on planning applications.

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