New standalone laws to water down culture and heritage protection

By Amy McQuire, November 8 2013, Tracker Magazine.

NEW SOUTH WALES: Developers could be given greater power to destroy significant Aboriginal culture and heritage under the NSW government’s proposal to deliver long-awaited standalone laws.

NSW Aboriginal affairs minister Victor Dominello (L) and NSW Environment Minister Robyn Parker have committed to standalone Aboriginal culture and heritage laws (AAP IMAGE/ TRACY Nearmy)
NSW Aboriginal affairs minister Victor Dominello (L) and NSW Environment Minister Robyn Parker have committed to standalone Aboriginal culture and heritage laws (AAP IMAGE/ TRACY Nearmy)

New South Wales is the only state or territory that hasn’t enacted separate legislation for the protection of our precious culture and heritage, despite it first being promised by Labor over 30 years ago.

Aboriginal peak organisations, including NSWALC (publisher of Tracker), have consistently called on state governments to fulfill this promise.

Currently, the main law governing Aboriginal culture and heritage protection is the state Flora and Fauna law – the National Parks and Wildlife Act. Under this Act, the majority of Aboriginal objects are considered the “property of the Crown” and has failed to protect Aboriginal sites.

In November last year, Environment minister Robyn Parker told an estimates hearing that the O’Farrell government was “absolutely” committed to delivering a stand-alone Aboriginal Heritage Act.

Despite this, her office sat on the report of a government-appointed Working Party formed to advise on culture and heritage reforms for over a year.

In October, Minister Parker and Aboriginal Affairs Minister Victor Dominello finally announced the government’s plans – proposing a separate Aboriginal Cultural Heritage Act.

In a press release, Minister Parker declared the reforms “historic”.

“A variety of options are proposed regarding how the local Aboriginal community makes decisions about protection of their cultural heritage,” Ms Parker said in a media release.

“Also, these proposed reforms will ensure cultural heritage considerations will occur at the start of any development process, giving greater certainty to both Aboriginal communities and project developers, and also generating time and cost savings.”

But the O’Farrell government has knocked back several key recommendations of the Working Party, and marginalized the role of Local Aboriginal Land Councils on the proposed Local Aboriginal Culture Heritage committees.

In fact – these proposed committees, which would be the bodies negotiating with government and developers, and also undertaking expensive and extensive work like mapping – will not have automatic representation from Local Aboriginal Land Councils. This comes despite the majority of LALCs currently undertaking extensive culture and heritage work. The model does not explain whether or how the committees will be resourced or funded.

The government also knocked back calls for the creation of an independent Aboriginal Heritage Commission – a body which was pushed for by peak organisations like NSWALC and NTSCORP, and also recommended by the Working Party.

There are concerns the legislation will water down already weak protections for culture and heritage under the current system.

The Aboriginal Heritage Impact Permit (AHIP) process will be replaced in favour of “flexible project agreements” agreed to at the local level between the newly formed committees and the developer.

The proposed model outlines no minimum standards for such negotiations, and unlike the AHIP system, the model does not explain whether local AHC committees will be able to refuse developments.

In fact, the proposed model will make it easier for developers to destroy Aboriginal culture and heritage without Aboriginal consultation if the heritage is deemed of “low” or no “value” under a new-tiered system.

Under the proposed changes there will be very short mandatory time frames for local ACH committees to respond to requests from developers. If a committee does not respond to a developer within a short 10-day timeframe, the developer can proceed with the activity.

If a dispute arises and is not resolved within 35 days, the developer can again proceed with that activity.
Aboriginal Affairs Minister Victor Dominello said the government would now undertake a series of consultations around the state.

“While there are many views about what kind of changes need to be made to deliver better outcomes, everyone is agreed on one issue − the time has come for us to reform Aboriginal Cultural Heritage legislation in NSW,” Mr Dominello said.

“A new standalone piece of legislation dedicated to protection of Aboriginal culture and heritage is long overdue.

“We now need to hear from you and look forward to constructive feedback on the government’s response in order to create the best possible model for all stakeholders.”

*The dates of the consultations are as follows:
QUEANBEYAN – November 8th – Queanbeyan Bicentennial Hall, 253 Crawford St.
BROKEN HILL – November 12th – Broken Hill Council Chambers, 240 Blend St
BOURKE – November 14th – Diggers on the Darling, Gundabooka Room, 23-25 Stuart St.
CESSNOCK – November 20th – Potters Brewery, Wine Country Drive, Nulbaka, Hunter Valley
TAMWORTH – November 22nd – Community Facility, Heritage Room, Cnr Peel and Darling St
BALLINA – November 27th – Lennox Head Cultural Centre, Mackney Lane, Lennox Head
SYDNEY – December 3rd – Redfern Community Centre, 29-53 Hugo St, Redfern
PORT MACQUARIE – December 5th – Panthers, Renaissance Room, 1 Bay St
GRIFFITH – December 16th – Griffith Regional Theatre, Burley Griffith Room, 1 Neville Place
NOWRA – December 19th – Shoalhaven Entertainment Centre, Studio Theatre, Bridge Rd

**Submission and comments are due to the OEH by February 14th 2014. All LALCs and community members are encouraged to make a submission outlining concerns and issues with the proposed Government model.
Submissions can be made via the following:
– Online at
– By email at
– By mail to: Aboriginal Culture and Heritage Reform Scretariat, NSW Office of Environment and Heritage, PO Box 1967 Hurstville BC NSW 1481
– By phone: record your submission by calling the free message line 1800 881 152
– By fax to: 02 9585 6366.

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