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 process, 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 New South Wales. This involves creating a new Aboriginal Cultural Heritage Act. When the Act has been passed by Parliament it will become a law.

The NSW Government has recently completed public consultation on the draft Aboriginal Cultural Heritage Bill 2018 and is currently analysing the feedback received.

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This arrangement is outdated and out of step with what's being done in other states.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 New South Wales. 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 the draft Aboriginal Cultural Heritage Bill that seeks to balance a range of interests and needs. The NSW Government has now completed its consultation on the draft bill.

The public consultation Draft Aboriginal Cultural Heritage Bill 2018 is closed.

However, you can find out more by reading the consultation documents, including:

Aboriginal people have been involved throughout the development of these reforms. In March and April 2018, 20 workshops were held with Aboriginal people and other key stakeholders to seek their feedback on the draft Aboriginal Cultural Heritage Bill 2018. This feedback is currently being analysed and used to finalise the draft bill.

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 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 task force, 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.

The proposals aim to deliver improvements for Aboriginal people, industry, and the wider NSW community through a new legal framework for Aboriginal cultural heritage, supported 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 reflected in the draft Aboriginal Cultural Heritage Bill 2018. 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 the current reform proposals.

Yes. Resourcing requirements are currently being considered.

The draft Bill is currently being updated in response to the feedback received. 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 statewide 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 Aboriginal Cultural Heritage Bill 2018 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.

Questions about key aims of the draft Bill

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 are included in Part 1 of the draft Aboriginal Cultural Heritage Bill 2018.

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, clause 24 of the draft Aboriginal Cultural Heritage Bill 2018 provides 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 Aboriginal Cultural Heritage Bill 2018 explicitly recognises that Aboriginal cultural heritage belongs to Aboriginal people.

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

Clause 8 of the draft Aboriginal Cultural Heritage Bill 2018 proposes that the Board of the ACH Authority consist of 13 Aboriginal people, nominated through a community-driven process and appointed by the minister. However, the draft Aboriginal Cultural Heritage Bill 2018 does not set out the process for nominating people and the number of members has not yet been confirmed. We have requested feedback from Aboriginal people on what they think is the most appropriate process and the most appropriate number of board members, before it is included in the law. This feedback is currently being analysed.

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 most of its decisions independently of the minister.

What is the ACH Authority's role?

Clause 12 of the draft Aboriginal Cultural Heritage Bill 2018 lists the main functions of the ACH Authority, which 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 Aboriginal Cultural Heritage Bill 2018 will not specify this. There will be no legal requirement for it to be based in Sydney.

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

The draft Aboriginal Cultural Heritage Bill 2018 does not set out how consultation panels should be formed or how they should operate. Clause 17 of the draft Aboriginal Cultural Heritage Bill 2018 requires 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 some years to conclude.

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?

Proposed functions of the local consultation panels are set out in clause 16 of the draft Aboriginal Cultural Heritage Bill 2018.

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 declarations of 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

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 Aboriginal Cultural Heritage Bill 2018 establishes a clearer relationship between the ALR Act and Aboriginal cultural heritage legislation than currently exists.

For example, the draft Aboriginal Cultural Heritage Bill 2018 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 because 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 strategy for the ACH Fund – 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 draft Aboriginal Cultural Heritage Bill 2018 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 OEH or other 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. The draft Aboriginal Cultural Heritage Bill 2018 allows for this under clause 13. 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?

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.

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?

A new, more flexible conservation tool called 'Declared ACH' is described in clause 18 of the draft Aboriginal Cultural Heritage Bill 2018 and 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. This is explained in clause 3 in Schedule 5 of the draft Aboriginal Cultural Heritage Bill 2018. Nominations for declarations of ACH will be made to the ACH Authority, which will consider nominations and make a recommendation to the minister for a decision.