Have your say on new Aboriginal cultural heritage laws
The NSW Government has released a Draft Aboriginal Cultural Heritage Bill 2018 (Draft Bill) and proposals paper outlining proposed new laws to conserve and manage Aboriginal cultural heritage (ACH) in NSW.
The NSW Office of Environment and Heritage (OEH) is seeking comments by this Friday 20 April 2018.
NSWALC encourages Local Aboriginal Land Councils and Aboriginal people to have your say.
Overall, the proposed new legal framework has the capacity to significantly improve the current laws.
However, further amendments are needed to ensure that new laws:
- Establish clear, strong and accountable mechanisms for protecting Aboriginal cultural heritage
- Enshrine the principle of self-determination,
- Meet NSWALC's Principles for Reform, and
- Reflect best practice standards and principles outlined in the United Nations Declaration on the Rights of Indigenous Peoples.
NSWALC is committed to working with government and key stakeholders to deliver reforms that will better protect Aboriginal cultural heritage.
Summary of NSWALC analysis
The proposals have the capacity to improve the current laws including:
- Decision making, administration, compliance and enforcement by Aboriginal people;
- Clearer steps for Aboriginal people and proponents/developers and generally requiring consideration of Aboriginal heritage before planning decisions are made;
- Broadening the definition of Aboriginal cultural heritage and new objects that recognise Aboriginal heritage belongs to Aboriginal people;
- Building on existing structures including the Aboriginal Land Rights Network;
- Information and mapping systems to be managed and owned by Aboriginal people, including a restricted access database for Aboriginal people only;
- Opportunities to provide incentives to land holders to protect ACH;
- New investigative powers and enforcement and compliance provisions as key tools to protect our unique and irreplaceable heritage, and will be important deterrents;
However, the Bill needs further amendments including:
- Limiting the decision-making roles of the Minister. The intent of the reforms is to provide decision
- making to Aboriginal people about our heritage. The Minister can oversee without making key decisions;
- Requiring all development and land use activities, including planning proposals, to follow the new ACH processes;
- Extending the harm offence to all ACH including undeclared Aboriginal cultural heritage;
- Removing extra elements to the harm offence which currently favour proponents;
- Limiting defences available to proponents for the harm offence;
- Adding safeguards in mapping, assessment pathway and Aboriginal cultural heritage management plan processes;
- Increasing penalties for harming ACH;
New roles for Aboriginal people
The draft Bill proposes to establish a new State level ACH Authority Board, made up of all Aboriginal people to make some decisions and administer the new laws. The ACH Authority will have significant roles and must have the confidence of the Aboriginal community. NSWALC recognises and respects that there will be many views on the establishment of the ACH Authority Board.
In relation to the ACH Authority, NSWALC supports:
- ACH Authority Board members selected from existing legislated groups in NSW with authority and functions relating to Aboriginal cultural heritage - that is Aboriginal Land Councils and Aboriginal Owners under the Aboriginal Land Rights Act 1983 and native title holders under the Native Title Act.
- An Aboriginal community controlled process where each of the above organisations/groups select their own representatives.
- If the Minister is to appoint ACH Authority members, the legislation must include safeguards to ensure that the Minister's decision is bound by the results of an Aboriginal community controlled selection process, and that the Minister cannot unjustly remove Board members.
NSWALC supports LALCs as the key local support and coordination body, unless the LALC chooses not to undertake this role. Any accreditation process must genuinely promote capacity.
NSWALC supports sufficient flexibility for local Aboriginal people to be able to determine the structure and composition of local ACH Consultation Panels. The legislation should state that panel members must be Aboriginal persons.
The NSW Government should resource the expansion and maintenance of the Aboriginal Owners Register under the Aboriginal Land Rights Act 1983 (NSW)to cover the whole of NSW.
How to make a submission
All LALCs and Aboriginal community members are encouraged to make a submission. You can make a submission to the NSW Office of Environment and Heritage (OEH) via the following:
Other materials and links
Please contact the NSWALC Strategy and Policy Unit on 02 9689 4444 or firstname.lastname@example.org.