NSW Aboriginal cultural heritage — a changing legislative landscape

A complete overhaul of the legislative framework for Aboriginal cultural heritage in NSW is underway. The review is aimed at delivering a more efficient and effective process for the protection of Aboriginal cultural heritage and obtaining development approvals. Public feedback on a model proposed by the NSW Government is currently being sought.

In 2012 the NSW Government established an independent Aboriginal and Cultural Heritage Reform Working Party. In December 2012 the Working Party made 23 recommendations for legislative reform. In 2012 and 2013 the NSW Office of Environment and Heritage managed 2 stakeholder public consultation programs. In response to these recommendations and public consultations, the NSW Heritage and Aboriginal Affairs Ministers have now released a discussion paper detailing a conceptual, proposed new model for the protection and management Aboriginal cultural heritage in NSW.

Key features of the proposed new model are:

  • the creation of new, stand-alone Aboriginal cultural heritage legislation,
  • new definitions and objectives to increase the protection of Aboriginal cultural heritage,
  • the creation of local Aboriginal cultural heritage committees,
  • decentralised Aboriginal cultural heritage management with local Aboriginal cultural heritage committees being a ‘one stop shop’ responsible for all consultation and decision making for local Aboriginal cultural heritage matters, including undertaking mapping and creating plans of management,
  • an expanded, publicly accessible Aboriginal cultural heritage register database,
  • making publicly available maps identifying areas of high, low or no Aboriginal cultural heritage value, and plans of management which will outline specific strategies for managing the Aboriginal cultural heritage identified in the maps,
  • statutory project agreements which are ‘fit for purpose’ made between proponents and local Aboriginal cultural heritage committees for the management of areas identified as high or unknown Aboriginal cultural heritage value,
  • a new funding system for which a series of options are being consulted on,
  • mandatory timeframes and legislated processes including for making project agreements and managing unexpected finds, and
  • a legislated dispute resolution and appeal process.

The discussion paper calls for public feedback. A series of 11 stakeholder consultation workshops are proposed to be held in NSW in November and December 2013. Formal submissions in response to the discussion paper must be made by 14 February 2014.

Following the consultation and submission process, feedback will be provided to the Government for consideration in drafting an exposure Bill. The public will be given further consultation opportunities on release of the draft exposure Bill.

For further information, please contact William Oxby, Partner, Alice Hoban, Senior Associate, or your usual Herbert Smith Freehills contact.

Another phase of the Streamlining Act rolled out

The latest phase in the slow roll out of the Mines Legislation (Streamlining) Amendment Act 2012, which was passed by State Parliament in August 2012, began last week, though it is not known when the remainder of the legislation will commence.

However given the extent of modification to the existing tenure administration regime, particularly in relation to post-grant dealing registrations, it is likely that we will not see the full system operating for quite some months.

Substantive parts of the tenure administration amendments that commenced last week under this new phase, include key changes, such as:

  • the Minister can now approve mining leases and 1923 petroleum leases  
  • new exploration permit relinquishment requirements (40% by end of year 3, 50% of remaining area by end of year 5)
  • new ability to withdraw objections on mining claims and mining leases
  • Minister’s new ability to issue “notice to progress” applications, and any failure to comply will allow the Minister to reject applications