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Australia – Exposure Draft Of The Aboriginal Heritage Protection Bill 2012.

28 December 2012

 

Legal News & Analysis – Asia Pacific – Australia – Environment

 

WHAT YOU NEED TO KNOW

 

  • The Tasmanian Government is proposing new legislation to replace the out-dated Aboriginal Relics Act 1975 (Tas).
  • The Exposure Draft of the Aboriginal Heritage Protection Bill 2012 (the “Exposure Draft“) was released for public comment on 2 November 2012.
  • The Tasmanian Government anticipates enacting and implementing the resulting Act in mid-2013.

 

WHAT YOU NEED TO DO

 

  • Comments or submissions on the Exposure Draft are required by 14 December 2012.
  • All land users need to consider the impact of the proposed changes and consider making a submission.

 

Introduction

 

A review of the Aboriginal cultural heritage regulatory regime has been underway in Tasmania for over a decade, with the first public consultation in respect of the Aboriginal Relics Act 1975 (Tas) (the “Relics Act”) taking place in 1997-98. A subsequent round of consultation was held in 2006-7, following which the Tasmanian Government undertook to prepare draft replacement legislation for further consultation. The exposure draft of the Aboriginal Heritage Protection Bill 2012, released for public comment on 2 November 2012, is the result.

 

The Exposure Draft represents a complete overhaul of the Tasmanian Aboriginal heritage protection and management regime.

 

Defining Aboriginal Heritage

 

Under the existing Relics Act, protection is only afforded to relics. These are objects, sites, places or human remains made or created by, or relating to, the original inhabitants of Australia or their descendants prior to 1876. The arbitrariness of 1876 as a statutory cut-off date is acknowledged in the Explanatory Guide accompanying the Exposure Draft. The Exposure Draft defines Aboriginal heritage by reference to “Aboriginal objects” and “Aboriginal places”, each of which are defined by “significance to Aboriginal persons”, and “Aboriginal human remains”. The broad scope of the definition of Aboriginal heritage in the Exposure Draft reflects the Tasmanian Government’s intention to give the proposed protection and management framework a wide reach.

 

Aboriginal Heritage Management Plans

 

The Exposure Draft prescribes a range of large-scale and high impact activities which will not be permitted to proceed without the proponent obtaining an approved Aboriginal Heritage Management Plan. Among others, those prescribed activities include:

 

  • a major infrastructure project within the meaning of the Major Infrastructure Development Approval Act 1999 (Tas); and
  • a project of regional significance under the Land Use Planning and Approvals Act 1993 (Tas).

 

The Minister may also add to the list of prescribed activities by regulation.

 

Aboriginal heritage assessments

 

A proponent must carry out an Aboriginal heritage assessment to determine the nature, extent and significance of any Aboriginal heritage within their project area as part of the preparation of an Aboriginal Heritage Management Plan.

 

The Exposure Draft contemplates the Minister making guidelines about the requirements for properly carrying out an Aboriginal heritage assessment.

 

Aboriginal Heritage Management Plan requirements

 

Once the proponent has a draft plan they must submit it to the new Aboriginal Heritage Council (“Council“) for review and participate in a 45 day negotiation process. However, if agreement cannot be reached, the proponent may continue to prepare the plan without further reference to the Council, as the Minister is the ultimate decision maker.

 

For approval, an Aboriginal Heritage Management Plan must:

 

  • be in a form approved by the Minister;
  • set out the results of the Aboriginal heritage assessment;
  • set out the proposed Aboriginal heritage protection measures; and
  • comply with the relevant regulatory requirements.

 

The “Summary of the Proposed Aboriginal Heritage Protection Regulations” released with the exposure draft (the “Regulations Summary“) states that the final regulations will prescribe minimum standards for the preparation of both mandatory and voluntary Aboriginal Heritage Management Plans. Those minimum standards will relate to, among other things:

 

  • consultants employed to develop the plan;
  • the nature and extent of consultation with the Council;
  • specification of the management approaches that are to be applied in order to avoid or mitigate impacts on Aboriginal heritage; and
  • procedures in response to any Aboriginal heritage find.

 

Ministerial approval of Aboriginal Heritage Management Plans

 

Once finalised, the proponent may apply to the Minister to approve the plan. The Minister must decide to approve or reject the plan within 30 days, during which time the Minister may consult the Council and other persons the Minister considers appropriate. There is a right of appeal to the Resources Management and Planning Appeal Tribunal if the plan is rejected.

 

Interestingly, the Exposure Draft imposes fines for proponents who fail to implement an Aboriginal Heritage Management Plan in accordance with its terms and for contravening the Aboriginal heritage protection measures required by the plan.

 

The Exposure Draft also gives the Minister a power to vary an approved Aboriginal Heritage Management Plan, either upon application by the proponent or on the Minister’s own motion.

 

Exemptions

 

The mandatory Aboriginal Heritage Management Plan requirements do not apply to “exempt land activities” which include, among other things:

 

  • maintenance and demolition of established transport and service infrastructure; and
  • maintenance, demolition and removal works associated with a “high impact land activity” sanctioned by an Aboriginal Heritage Management Plan.

 

The Exposure Draft also includes an exception if a proponent can demonstrate that the area of their proposed activity has previously sustained serious ground disturbance that is, “in extent, total or widespread.”

 

Integration with the resource management and planning system

 

Integration through the Aboriginal Heritage Management Plan process

 

The Exposure Draft provides that, if a proponent is required or voluntarily elects to prepare an Aboriginal Heritage Management Plan and their project also requires other statutory approvals, permits, or authorisation under any other Act, those other statutory approvals must not be issued unless:

 

  • the plan has been approved by the Minister; and
  • the other statutory approvals are consistent with the plan.

 

Integration through approvals required under other planning legislation

 

The Exposure Draft creates a tandem approval process under which the Minister can elect to review, on Aboriginal heritage grounds, an application for a permit or licence under the Land Use Planning and Approvals Act 1993 (Tas) (the “Planning Act“) or the Water Management Act 1999 (Tas) (the “Water Act“). If the Minister elects to review an application, they may liaise with the Council and consider the potential Aboriginal heritage impacts of the proposed activity. The Minister can then consent to the application, either outright or subject to conditions, or refuse the application. The Minister has 35 days from the date of the original application to make that determination unless an extension of up to 14 days is agreed with the applicant.

 

Activities that are “exempt land activities” in connection with the Aboriginal Heritage Management Plan requirement, or proposed to take place on land previously subject to “serious ground disturbance”, are excluded from this process.

 

Permits for specified activities

 

The Exposure Draft contemplates a permitting system to supplement the Aboriginal Heritage Management Plan provisions. The Explanatory Guide to the Exposure Draft states that the “permit scheme is intended mainly to cover small-scale activities that may affect Aboriginal heritage, but which do not require an Aboriginal heritage management plan.”

 

In order to carry out specified dealings with Aboriginal heritage, or to carry out an activity involving, or reasonably likely to involve, harm to an Aboriginal Object or Aboriginal Place, an Aboriginal heritage permit is required.

 

An exemption is available if the activity:

 

  • is an “exempt land activity”;
  • is sanctioned by an Aboriginal Heritage Management Plan or an approval issued under the Planning Act or the Water Act; or
  • will take place on land shown to have been previously subject to serious ground disturbance (the same evidentiary requirements will apply as for the exemption to the Aboriginal Heritage Management Plan provisions).

 

A permit cannot be granted:

 

  • if the proposed activity will involve or likely involve the destruction, disturbance or relocation of Aboriginal human remains;
  • for an activity for which an Aboriginal Heritage Management Plan is required; or
  • if a permit under the Planning Act or the Water Act is required for the activity.

 

Permit applications will be made to the Council or Minister depending on the invasiveness of the proposed activity, and must be decided within 21 days. The deciding body must consult such persons (including the Council for applications to the Minister) with an interest in, or knowledge of, the relevant land or Aboriginal heritage, and may require the applicant to carry out an Aboriginal heritage assessment.

 

Robust protection and enforcement mechanisms

 

The Exposure Draft provides a robust framework of offences and penalties and corresponding protection and enforcement mechanisms. It also introduces a new system for reporting and recording Aboriginal heritage and a capacity in the Minister to audit compliance with the various protection provisions proposed in the Exposure Draft.

 

In summary, the Exposure Draft

 

  • establishes offences for:
    • knowingly, recklessly or negligently harming Aboriginal heritage, with penalties of fines up to 2,000 penalty units (currently $260,000) for an individual and 10,000 penalty units (currently $1.3 million) for a body corporate;
    • knowingly doing an act that is likely to harm Aboriginal heritage; and
    • excavating Aboriginal heritage or moving registered Aboriginal heritage,

 

subject to a defence if the act is done pursuant to an Aboriginal heritage permit, an Aboriginal Heritage Management Plan (or incidental to its preparation), an external regulatory approval with Aboriginal heritage conditions, or in an emergency;

 

  • confers personal liability on persons concerned in the management of a body corporate that commits an offence, unless:
    • the offence took place without the person’s knowledge or consent; or
    • the person used all due diligence to prevent the offence;
  • imposes a duty to report the discovery of Aboriginal Objects and Aboriginal Places; and
  • empowers the Minister to:
    • audit compliance with Aboriginal Heritage Management Plans, permits and Aboriginal heritage approval conditions;
    • issue Aboriginal heritage stop orders; and
    • issue enduring or interim Aboriginal heritage protection orders in respect of registered Aboriginal Objects or Aboriginal Places; and
  • imposes penalties for:
    • failing to implement an Aboriginal Heritage Management Plan; and 
    • contravening a condition of an Aboriginal Heritage Management Plan or permit.

 

Involvement of the Aboriginal community

 

The Exposure Draft provides for more involvement of the Aboriginal community in the Aboriginal heritage management and protection process, primarily through establishment of the Council, but also through the consultation obligations for certain Council and Ministerial decisions. The Council is intended to provide a single State-wide voice for the Aboriginal community, but may also carry out specific consultation when exercising its functions.

 

Next steps

 

The Tasmanian Government has invited feedback on any and all aspects of the Exposure Draft. However, the official timeframe for making comments or submissions in response to the Exposure Draft ends on 14 December 2012.

 

Any stakeholder who wishes to provide comments or make a submission should contact the Aboriginal Heritage Legislation division of the Department of Primary Industries, Parks and Environment.



 

 

 

For further information, please contact:

 

Clare Lawrence, Ashurst

clare.lawrence@ashurst.com

 

Michael Rice​, Ashurst

michael.rice@ashurst.com

 

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