Aboriginal Site protection

The NSW Government is proposing to make significant changes to the primary law for the protection of Aboriginal culture and heritage.

Changes to the Protection of Culture and Heritage

This web page includes information about changes to the main law for the protection of Aboriginal heritage in NSW - the National Parks and Wildlife Act - that occurred in 2010. For information about current reform proposals and NSWALC's ongoing campaign to establish separate Aboriginal heritage legislation for NSW which recognises and respects Aboriginal peoples' rights to own, control and manage Aboriginal heritage, please refer to the 'More than Flora and Fauna' page of this website.

This page includes the following sections:

  • New Aboriginal culture and heritage laws due to come into effect 1 Oct 2010
  • Media Release: Minister fails to negotiate in good faith with Aboriginal groups
  • National Parks and Wildlife Amendment Act 2010
  • Draft National Parks and Wildlife Regulation
  • Minimum Standards for Due Diligence Codes of Practice
  • Codes of Practice
  • Announcement of new Community Consultation Requirements
  • Independent Aboriginal heritage law for NSW?
  • More than Flora and Fauna submission

Aboriginal culture and heritage laws 2010

Following the changes to the heritage provisions of the National Parks and Wildlife Act 1974 (NSW), the new National Parks and Wildlife (Aboriginal Sites and Aboriginal Places) Regulations 2010 have been released. Click here for a Network Message (24 September 2010) and Fact Sheet about the Act and Regulations.

Land Councils are advised that heritage laws and regulations, which include new penalties for the destruction of Aboriginal heritage, came into effect on 1 October 2010.    


For more information about the changes please contact the Policy and Research Unit on 02 9689 444 or by email on policy@alc.org.au.

Media Release: Minister fails to negotiate in good faith with Aboriginal groups

The Chairwoman of NSWALC and the Chief Executive Officer of NTSCORP released a joint press-release on 14 September 2010 condemning the NSW Government's bad faith on these heritage negotiations.

In April 2010, the Minister for the Environment, the Hon Frank Sartor MP, made a commitment that he would negotiate with Aboriginal groups, including NSWALC, on the details of the National Parks and Wildlife Regulations, due to come into effect on 1 October 2010.

The regulations support changes to the National Parks and Wildlife Amendment Act 2010 which were passed by the NSW Parliament in June 2010.

Following a number of submissions and meetings held by NSWALC and NTSCORP with Minister Sartor and the Department of Environment, Climate Change and Water (DECCW), it appears clear that the Minister and DECCW have negotiated in bad faith by failing to inform either group that amendments negotiated over several months had been rejected.

Despite repeated inquiries, NSWALC did not receive copies or details of the final regulations from DECCW or the Minister's Office until late August. When the information was finally provided, the late notice meant that NSWALC was not able to respond as the period for negotiations had ceased.

National Parks and Wildlife Amendment Act 2010

In June 2010 the NSW Government passed a number of changes to the main Aboriginal heritage law in NSW - the National Parks and Wildlife Act 1974. Part 6 of the National Parks and Wildlife Act provides for the issuing of permits authorising damage or destruction to Aboriginal cultural heritage objects and places.

Before the National Parks and Wildlife Amendment Bill 2010 (also known as the Omnibus Bill) was passed, NSWALC won a number of significant amendments which will increase the level of protection available to Aboriginal sites. These amendments were jointly negotiated with the native title representative body NTSCORP. Thank you to everyone who supported these important negotiations.

Click here for a Network Message from the NSWALC Chair about the changes.

NSWALC has produced a Fact Sheet which outlines the main changes which the Omnibus Bill made to the current law (as of 24th September 2010).

More background information about how Aboriginal culture and heritage is managed in NSW, including how many permits are issued authorising damage and destruction to Aboriginal heritage, see the NSWALC More than Flora and Fauna submission.

More information about the changes is available from the DECCW website at http://www.environment.nsw.gov.au/legislation/NPWamendmentACT2010.htm.

National Parks and Wildlife Regulation

The regulations support the new provisions of the National Parks and Wildlife Amendment Act 2010, and are due to come into effect on 1 October 2010. NSWALC has developed a Fact Sheet explaining the main changes with the new laws, and the planned regulations. Click here for a copy of the Fact Sheet.

The regulations have been published in the NSW Government Gazette or the NSW Legislation website on 24 September 2010.

Negotiations with the NSW Government

NSWALC, in cooperation with NTSCORP, had been negotiating with the NSW Department of Environment, Climate Change and Water (DECCW) and Minister for the Environment, Frank Sartor, for more than 12 months, on improvements to Aboriginal cultural heritage laws in NSW.

In February 2010, the Minister for the Environment, the Hon Frank Sartor MP, released a draft of the regulations.

For more information about the draft Regulations click here for a Network Message (1 July 2010).

NSWALC and NTSCORP prepared a joint submission in response to the draft Regulations released in June 2010.

While the Minister had committed to work with Aboriginal groups on these amendments, the majority of recommendations put forward by NSWALC and NTSCORP in the joint submission have been rejected.

However, NSWALC and NTSCORP secured some positive amendments to the National Parks and Wildlife Regulations, as outlined in the Network message (24 Sept  2010).

Overall, serious concerns remain about some aspects of the new laws, particularly the wide nature of the defences where a person has damaged an Aboriginal object, and how the negotiations were conducted. Refer to the joint NSWALC-NTSCORP media release

LALCs are encouraged to review the new Regulations and contact NSWALC with any feedback. Inquiries should be directed to the NSWALC Policy and Research Unit on 02 9689 4444 or to policy@alc.org.au.

What do the new Regulations say?

The new regulations are called the National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Amendment Regulation 2010. The Regulation outlines how many of the new Aboriginal heritage changes will  passed to the National Parks and Wildlife Act in June 2010 will work in practice.

A summary of the Regulations is included in the Fact Sheet, but in brief the Regulations include:

1. New defences which will be available to a person who harms an Aboriginal object where they did not know it existed without a permit from DECCW including:

  • Where a person followed the steps in a prescribed 'due diligence' Codes of Practice.
  • Where a person was undertaking a listed 'low impact' activity.

2. Codes of Practice which, if a person follows them, will act as a 'due diligence' defence. These Codes include the generic DECCW Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW, which anyone can follow, and Industry specific Codes of Practice.

3. Activities that are excluded from the definition of 'harm' to an Aboriginal object - including archaeological test activities under the Code of Practice for Archaeological Investigation in NSW.

4. Minimum requirements for Aboriginal community consultation in relation to permits. These reflect the recently released DECCW Aboriginal cultural heritage consultation requirements for proponents 2010

Minimum Standard for Codes of Practice for the Protection of Aboriginal Objects in NSW

The National Parks and Wildlife Amendment Act 2010, passed by Parliament in June 2010, created a new offence for individuals and organisations which unknowingly harm an Aboriginal object - the strict liability offence of harming Aboriginal objects.

The changes also created a defence if a person harmed an Aboriginal object but had taken reasonable care - known as due diligence. Industries such as mining and forestry are able to develop their own 'Codes of Practice' which outlining what will be considered 'due diligence' for their industry.

Aboriginal groups, including NSWALC, raised strong opposition to the overly broad powers of the Minister to define what would amount to due diligence through the making of regulations, without a first establishing a benchmark.

The strong opposition raised by Aboriginal groups resulted in an amendment to the Act which now requires that the Minister is not to recommend the making of a regulation to adopt an industry 'Code of Practice' unless a minimum standard has been established by DECCW and the Minister is satisfied the code of practice meets those minimum standards.

On 10 September 2010, the Minimum Standard for Codes of Practice for the Protection of Aboriginal Objects in NSW was gazetted by the Director General.

 Of the recommendations put forward by NSWALC and NTSCORP during the negotiations on the draft Regulations, the NSW Government adopted the following in respect to the minimum standard:

  • A requirement that all Codes of Practice include a plain English explanation of the relevant provisions of the heritage provisions of the National Parks and Wildlife Act, and a plain English explanation of due diligence, and
  • A requirement that all Codes of Practice encourage users to engage with the Aboriginal community

Codes of Practice

On 13 September 2010, the NSW Government released its generic Due Diligence Code of Practice for the Protection of Aboriginal Objects in NSW, which creates a defence to the strict liability offence of harming Aboriginal objects. This will be adopted by the National Parks and Wildlife Regulation which is due to commence on 1 October 2010.

The Minister for the Environment, the Hon Frank Sartor MP, released a Consultation Draft of a Due Diligence Code of Practice in February 2010 for public comment, at the same time as the Draft Regulations.

Earlier comments made by NSWALC on the 2009 draft of the Code are included in NSWALC's More than Flora and Fauna submission.

Other industry specific Codes of Practice will also be adopted by the Regulation. These are:

The generic Due Diligence Code of Practice and the industry specific Codes of Practice must meet minimum standards which have been set by the Director General. These standards were published in the Government Gazette on 10 September 2010.

The Plantations and Reafforestation Code and the Private Native Forestry Code of Practice are existing statutory codes and currently do not need to meet these minimum standards.

Announcement of new Community Consultation Requirements: 

The Department of Environment, Climate Change and Water (DECCW) announced in April 2010 a new policy outlining how consultation with the Aboriginal community must be undertaken, before a permit authorising damage or disturbance to an Aboriginal object or place is issued. Key stages of this policy have now been adopted into the National Parks and Wildlife Amendment (Aboriginal Objects and Aboriginal Places) Amendment Regulation 2010.

See the new NSWALC Consultation webpage for more information.

Independent Aboriginal heritage law for NSW?

NSWALC, along with other Aboriginal organisations, have called for the establishment of independent Aboriginal heritage legislation which would recognise Aboriginal control and ownership of Aboriginal heritage.

In February 2010, the Minister for the Environment, Frank Sartor, announced the establishment of a Working Group to consider independent Aboriginal heritage legislation for NSW. The proposed Working Group is to report in 2 years. The Terms of Reference and members of the Working Group have not yet been announced.

Further information about the proposed Working Group, and NSWALC's broader campaign for the development of separate culture and heritage legislation for NSW, will be provided shortly.

  If you have any questions or wish to raise any concerns regarding the proposed reforms, please contact the Policy and Research Unit of NSWALC on 02 9689 4444, or email policy@alc.org.au.

NSWALC's More than Flora and Fauna Submission (2009)

In April 2009, the NSW Government released a Consultation Draft of the National Parks and Wildlife Amendment Bill 2009 (also known as the Omnibus Bill 2009)

Public comments were invited on the 2009 Draft Omnibus Bill through the DECCW.

More-than-Flora-and-Fauna.jpg

NSWALC has set out its detailed concerns and those of its constituents to the proposed culture and heritage reforms in it's submission. More Than Flora and Fauna  : Response to the National Parks and Wildlife Amendment Bill 2009

[Click on the booklet to download a PDF version of More Than Flora and Fauna.]

More than Flora and Fauna provides a comprehensive background to the management of Aboriginal heritage in NSW - and what needs to be changed to ensure that important Aboriginal heritage does not continue to be lost through inappropriate development and government approvals.

Local Aboriginal Land Councils and other community organisations are encouraged to use the information and research summarised in the More than Flora and Fauna submission in their local areas to highlight the urgent need for law reform in NSW.

For more information about the More than Flora and Fauna submission please contact the Policy and Research Unit of NSWALC on 02 9689 4444, or email policy@alc.org.au.

2009 CULTURE AND HERITAGE FACT SHEETS

In July 2009, NSWALC produced six Culture and Heritage Fact Sheets (below) for LALCs which outline the current law and explain the proposed changes.

The following Fact Sheets were developed by NSWALC in May 2009 based on the 2009 version of the Omnibus Bill. They include useful summary information about how Aboriginal heritage is currently managed in NSW. These Fact Sheets are shortly due to be updated: Â