Aboriginal cultural heritage in NSW: Questions

We are working to change the laws around Aboriginal cultural heritage in New South Wales. This page provides answers to questions about the public consultation and how you can get involved, as well as responses to questions about the 5 key aims of the new draft legislation.

We are developing a new system for the conservation and management of Aboriginal cultural heritage in NSW. This involves creating a new Aboriginal cultural heritage Act. When the Act has been passed by Parliament it will become a law.

There will be information sessions, workshops and webinars to help you understand the proposed new system and to provide feedback.

The conservation and management of Aboriginal cultural heritage in NSW is currently regulated under Part 6 of the National Parks and Wildlife Act 1974.

This arrangement is outdated and out of step with what’s being done in other states. We know from widespread stakeholder feedback and research that the current system is not delivering the best possible outcomes for Aboriginal people, industry or the wider community.

There is widespread support to create a new, stand-alone Act for the management and conservation of Aboriginal cultural heritage in NSW. However, there are also wide ranging and sometimes contrasting views on the detailed arrangements that should be established under a new Act. The NSW Government, in consultation with key stakeholders, has been working through these diverse views to come up with a proposed model that seeks to balance a range of interests and needs. The NSW Government is now seeking feedback from all stakeholders on the proposed model.

The draft legislation will soon be ready for review. In the meantime, we have released information materials that explain how the draft legislation is proposed to work. From 18 September 2017, we will be holding a series of information sessions at 19 locations across NSW, to explain the new system before the draft legislation is released. Find out about locations and dates for the information sessions.

When the draft legislation is released, we will return to the same 19 locations for a series of workshops to gather your feedback. Find out about locations and dates for the workshops.

We are seeking your feedback to help refine the proposed legislation before it is sent to Parliament.

The draft legislation is only one part of a broader legal framework that will be established. Many of the detailed rules for the new system – the regulations, policies and guidelines – will be developed after the legislation has been passed by Parliament. There will be further opportunities to provide input into those regulations, policies and guidelines as they are developed over coming years.

The best way to find out more is to read the consultation documents including:

We also encourage you to attend one of our public information sessions, workshops and webinars.

The introductory videos and the Factsheet will provide you with an overview of the proposed new system, why Aboriginal cultural heritage is important to Aboriginal people and how to get more information and provide feedback.

The Proposal Paper is a detailed explanation of the proposals in the legislation. It goes into much more detail about the context for the proposed new law, the details of the new processes and systems that the legislation will establish, the benefits to Aboriginal people, industry, government and the community, and how to give your feedback.

The Yarn Up Handbook will help guide the discussion and consideration of key questions you may have about a new governance structure.

The draft legislation for the draft Aboriginal cultural heritage bill will be published on the OEH website shortly.

The information sessions and workshops are open to everyone.

While they have been specifically designed to make Aboriginal people feel culturally safe and comfortable asking questions/providing feedback, all members of the public are invited to participate. This includes local government, industry representatives, landholders and heritage consultants. It will be important to receive feedback from all sectors of the community to ensure the new system is as effective as possible.

Yes. To help us cater for the right number of people, if you are planning to attend please register online or by contacting Jackie Puckeridge from Marcia Ella Consulting at 0481 959 813.

We strongly encourage you to register so that we can be sure the room can accommodate all attendees and we have enough food and refreshments for everyone. Registration is being managed by an independent Aboriginal organisation, Marcia Ella Consulting, and your details will not be held by OEH.

If you are unable to register, you are still welcome as we aim not to turn anyone away.

For anyone who was unable to make it to an information session, you can watch an online webinar. The webinar covers the same material as the information session and is available to view on the ‘Videos’ section of our consultation page (video 5).

A webinar is a live meeting that takes places over the internet. For anyone who was unable to make it to an information session, you can watch an online webinar. The webinar covers the same material as the information session and is available to view on the ‘Videos’ section of our consultation page (video 5).

We strongly encourage you to do so as they have different purposes. The information session is for you to become more familiar with what is being proposed. The workshop is for you to discuss issues, hear the views of others and provide feedback in a group setting.

If you can't make it to an information session, you can learn more about the proposed new system and the draft legislation by reading the consultation documents, before coming to a workshop to provide your feedback.

If you attend an information session, but can't make it to a workshop to provide your feedback, you can instead provide your feedback in writing or verbally over the phone (a five-minute recorded message).

Email your written submission

Call 131 555 and ask to leave a verbal submission. These can be up to five minutes long.

Post your written submission to:
NSW Office of Environment and Heritage
PO Box A290
Sydney South, NSW 1232

You can make a verbal submission by calling 131 555 and letting the operator know you would like to make a verbal submission on the draft Aboriginal cultural heritage legislation. The operator will ask you for a few basic details and then transfer you to a message bank where you can leave your name and a five-minute message. This will be included as a formal submission.

The content of verbal submissions will not be shared on the website.

The submission period has been extended to early 2018. We will update this website with the exact date soon.

Yes. In 2012 an independent taskforce held dozens of community events with Aboriginal people to identify their key priorities for reform. In 2013 the NSW Government released a proposed reform model based on the recommendations of the taskforce, and between 2013 and 2014 Aboriginal people provided substantial feedback on that model. The feedback from those two periods of consultation has been instrumental in developing the current reform proposals.

Aboriginal organisations, including the NSW Aboriginal Cultural Heritage Advisory Committee and the NSW Aboriginal Land Council, have also provided important input to the current reform proposals. Other organisations we have met with to discuss the current proposals include NTSCorp, joint management boards, the Office of the Registrar of the Aboriginal Land Rights Act 1983, and the National Native Title Tribunal.

In the lead up to the current consultation process, we emailed these Aboriginal groups, and more, to invite them to our consultation sessions to provide input into the draft legislation.

We are keen to hear as many views as possible during the current consultation period.

The proposals aim to deliver improvements for Aboriginal people, industry, and the wider NSW community through a new legal framework for Aboriginal cultural heritage, underpinned by a new stand-alone Aboriginal Cultural Heritage Act.

The aims of the reform proposals are to:

  • recognise in law a more respectful and contemporary understanding of Aboriginal cultural heritage
  • create new governance structures that give Aboriginal people legal responsibility for and authority over Aboriginal cultural heritage
  • improve outcomes for Aboriginal cultural heritage through new information management systems and processes that are overseen by Aboriginal people
  • provide broader protection and more strategic conservation of Aboriginal cultural heritage values
  • provide better upfront information to support assessments, clearer consultation processes and timeframes, and regulatory tools that can change to suit different types of projects.

Feedback from the 2013 model has been used to develop the current reform proposals. Elements of the 2013 model that were supported will be incorporated in the draft Bill. When feedback indicated a lack of support or a desire for greater detail, changes will be made. Table 10 on page 54 of the Proposal paper outlines key differences between the 2013 model and 2017 proposals.

Yes. Resourcing requirements are currently being considered and will be finalised following consideration of feedback received on the proposals in the draft Bill.

After consultation, the draft Bill will be updated in response to feedback. The aim is to then introduce the Act into parliament in 2018 where it can be debated and passed.

The new legislation proposed by the draft Bill is the first part of a new legal framework, and won’t come into force straight away or all at once.

Importantly, the first part of the Act that will come into force will provide for the establishment of a new state-wide body of Aboriginal people (the 'ACH Authority').

The ACH Authority will work with Aboriginal people and organisations, state government agencies, local government, industry bodies and other stakeholders to develop the detailed rules (including regulations, policies and guidelines) over the next 2 to 3 years and will form the rest of the legal framework.

Once all the parts of the legal framework have been developed, the rest of the Act will come into force and the new system will be 'switched on'.

This phased approach is designed to support self-determination – by ensuring Aboriginal people develop the detailed rules for how the system will work.

Yes. The current system will continue to operate until all parts of the new legal framework are in place and the new system is switched on. This will take several years. Approvals granted under the current system will be 'saved' under the new system.

The draft Bill does not say which minister will be responsible for the new Aboriginal cultural heritage legislation. Instead, it will adopt the common approach of referring to 'the minister administering the Act'. The decision about which minister this will be rests with the NSW Premier. However, for practical reasons it is likely that the current minister will continue to be responsible during the transition period.

The reforms do not affect native title rights in any way.

The proposals relate to NSW law and state responsibilities, and do not have direct implications for questions of sovereignty under Commonwealth law.

However, the proposals support Aboriginal self-determination, and as such, align with the principles of Aboriginal sovereignty.

There have been delays in preparing the draft Bill. Many people want to see the draft Bill before they provide feedback so we have delayed the workshops.

Questions about key aims of the new draft legislation

What are the statutory objects and where are they?

Statutory objects are a set of statements or principles that sit at the beginning of legislation and outline what the legislation aims to do and how it can be used. They establish what the legislation covers, act as a guide for people using the law, and help decision-makers and the courts interpret the law.

The statutory objects will be available in the draft legislation.

Why does ownership of 'certain Aboriginal objects' sit with the Aboriginal Cultural heritage Authority and not with Aboriginal people?

The current legislation (the National Parks and Wildlife Act 1974) makes 'certain Aboriginal objects' the property of the Crown (or the government). These are Aboriginal objects that were not in private ownership before October 1967, and were 'abandoned' by persons other than the Crown after that time.

The current legislation also establishes arrangements for the care, safekeeping and transfer of those objects that are 'owned' by the Crown. This includes the arrangement under which the Australian Museum holds upward of 100,000 objects on behalf of the Crown.

To avoid any confusion about the status of those objects when the new system begins, the draft Bill will provide that they are no longer to be owned by the Crown, but by the Aboriginal Cultural Heritage Authority on behalf of the Aboriginal people of NSW.

More generally, the draft Bill will explicitly recognise that Aboriginal cultural heritage belongs to Aboriginal people.

Who will be on the Board of the Aboriginal Cultural Heritage (ACH) Authority?

The draft Bill will propose that the Board of the ACH Authority will consist of 13 Aboriginal people, nominated through a community-driven process and appointed by the minister. However, the draft Bill will not set out what the process for nominating people will be and the number of members has not yet been confirmed. This is because we want to know what Aboriginal people think is the most appropriate process and the most appropriate number of board members, before it is included in the law. During the consultation period we are asking Aboriginal people to give us their views on this.

Who or what does the ACH Authority report to?

The ACH Authority will be an independent statutory body with standard statutory reporting requirements for financial, governance and other functions. The Authority will report to the minister administering the ACH Act, but it will make the majority of its decisions independently of the minister.

What is the ACH Authority's role?

The ACH Authority will be responsible for:

  • administering the new legal framework
  • making key decisions about Aboriginal cultural heritage
  • providing advice and recommendations to the Minister administering the new Act
  • developing and adopting operational policies, guidelines, codes of practice and methods that guide how the new ACH legislation is to be applied in practice.

What decision-making powers will the ACH Authority have?

The ACH Authority will be responsible for making many of the decisions about Aboriginal cultural heritage. These include forming local ACH consultation panels, approving ACH strategic plans, and approving or refusing ACH management plans negotiated between developers and consultation panels.

Where will the ACH Authority be based? Will it be a Sydney-based board

The draft Bill will not specify this. The ACH Authority could be based anywhere. There will be no requirement for it to be based in Sydney.

Will the ACH Authority and/or panels includes salaried roles or are members expected to donate their time?

Members of the ACH Authority and the local consultation panels will be paid.

To avoid any conflicts of interest during negotiations with development proponents, Aboriginal people can be paid as members of local consultation panels (if they are appointed to a panel – see additional questions and answers about local consultation panels for further information), or be employed by development proponents, but will not be able to do both.

What is the process for selecting and appointing people to local ACH consultation panels?

The draft Bill will not set out how consultation panels should be formed or how they should operate. Instead, the draft Bill will require the ACH Authority to consult with Aboriginal communities and develop a formal policy that sets out how consultation panels will be formed and how they will operate. This work will begin after the ACH Authority has been established and will take a number of years to conclude.

Feedback from previous rounds of public consultation, and discussions with Aboriginal stakeholders, have indicated a strong preference that only people with cultural authority (or who can represent others with cultural authority) should be able to sit on consultation panels and speak for Country. Another view is that membership of consultation panels should be drawn from organisations, such as Local Aboriginal Land Councils, whether or not those individuals are recognised as having cultural authority to speak for that Country.

Even though the new legislation will not specify how local consultation panels are to be formed and operate, we would welcome Aboriginal peoples' early views on this as it will help ensure the legislation is workable.

How many local consultation panels will there be and what will be used to define the boundaries of each panel's area?

The scale and boundaries for local ACH consultation panels will form part of the policy to be developed by the ACH Authority in consultation with Aboriginal people. There are many different views about this, and there will be an extensive consultation process for Aboriginal people to work through the many perspectives and factors that need to be considered.

What is the role of the local consultation panels?

Local consultation panels are intended to be, or represent, the cultural authority to speak for Country within their area. They will have a number of roles, including:

  • negotiating Aboriginal cultural heritage management plans (ACHMPs) with proponents of certain activities
  • developing and implementing ACH strategic plans for their areas, which will identify ACH protection, conservation and funding priorities
  • providing information about ACH values in their areas for inclusion in the ACH information system
  • providing advice to the ACH Authority on a range of issues including (but not limited to):
    • the outcomes of their negotiations of ACHMPs with proponents
    • the repatriation of Aboriginal objects or materials
    • proposals for Declared ACH
    • voluntary conservation agreements
    • Aboriginal cultural heritage nominations on the State Heritage Register under the Heritage Act 1977
    • applications for intangible ACH to be registered on the ACH database
    • other information to be included in the ACH Information System

    Will there be capacity building for local consultation panels, both financial and with regard to the knowledge/infrastructure they need to perform their duties?

    Yes. One of the reasons for the implementation happening over a few years is to ensure that there is capacity building for all parties including the local ACH consultation panels. Work is underway to identify the resources needed, and feedback from the consultation process will help inform this work.

    What roles will Local Aboriginal Land Councils play under the new Act?

    Section 52(4) of the Aboriginal Land Rights Act (ALR Act) provides that the functions of Local Aboriginal Land Councils (LALCs) include to 'take action to protect the culture and heritage of Aboriginal persons in the Council’s area, subject to any other law'.

    The draft Bill will establish a much clearer relationship between the ALR Act and Aboriginal cultural heritage legislation than currently exists.

    For example, the draft Bill builds on the administrative structures established by the ALR Act to support the proposed decision-making arrangements under the ACH legislation. Under the new proposals, LALCs will be able to operate as coordination and support bodies to local consultation panels. It will be up to individual LALCs to decide if they want to take on these functions. If they do, they will need to meet certain criteria and be authorised by the ACH Authority. There will be resourcing to build capacity within LALCs so that they can meet these criteria, and to enable them to perform the additional functions that would be required of them under the legislation.

    Can other organisations be local coordination and support bodies?

    Yes. In circumstances where a LALC does not want to take on the coordination and support role, or needs additional time to build capacity to take on the role, other Aboriginal organisations that meet the ACH Authority's criteria will be able to perform this function.

    Why do local ACH consultation panels need this support?

    The panels will be groups of individuals involved in a range of activities on the basis of their cultural knowledge and expertise. They will need to be supported to participate in these activities in a structured way. Local coordination and support bodies will provide a range of support services, including:

    • day to day administration and organisation
    • supporting local information gathering and management and
    • coordinating contact between industry and the local consultation panels.

    Why can the minister make decisions about Aboriginal cultural heritage?

    The role of the minister is primarily to provide strategic oversight of the Act including formally appointing members to the ACH Authority and supporting it to meet the objects of the Act.

    The minister will have a limited number of decision-making powers. These include:

    • approving the ACH Authority’s funding strategy – this is required because the fund will hold government money
    • approving some parts of the Act that have wider regulatory implications for other areas such as the planning system - for example, the methodology for making the ACH map
    • approving permanent protection over private or Crown land.

    Where the legislation gives the Authority the power to make decisions, the minister cannot direct or override these decisions. The only way these decisions can be challenged is through the courts.

    What will be OEH's role in the new framework?

    There is no formal role for government agencies in the draft legislation. However, it is anticipated that agencies, in particular OEH, will continue to support ACH operations under delegation from the ACH Authority for some time. This might include secretariat support for the ACH Authority, administering the Aboriginal Cultural Heritage Information System on behalf of the Authority, or providing technical support in preparing ACH maps.

How do ACH conservation agreements differ from existing voluntary conservation agreements?

A new, more flexible conservation tool called 'Declared ACH' is proposed to replace the current system of Aboriginal place declarations. However, all existing Aboriginal places will be preserved, and deemed to be Declared ACH under the new system.

Nominations for Declared ACH will be made to the ACH Authority, which will consider nominations and make a recommendation to the minister for decision.

What will happen to existing voluntary conservation agreements?

The provisions in the National Parks and Wildlife Act 1974 will be carried across to the new legislation with some changes, and renamed 'ACH Conservation Agreements'. Existing voluntary conservation agreements will continue to be recognised under the new system.

What will happen to existing Aboriginal places?

They are very similar. The main difference is that ACH conservation agreements will be made between the ACH Authority and a landowner rather than the minister and a landowner.