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Environmental planning for better outcomes: Aboriginal heritage considerations

Advitech archaeologist Jake Brown takes a look at how a rigorous and forward-thinking approach to environmental planning and assessment can aid public and private developers in the achievement of strategic outcomes beyond compliance.

The NSW heritage system has different procedures for assessing Aboriginal heritage. As of November 2019, the Aboriginal heritage legislation remains under review following several delays, and there is no indication of when a new version will be finalised. This article provides an oversight to how the current system works and what to expect when an assessment is required for your project.

Due Diligence

The NSW legislation allows for a due diligence process to be created and tailored to a project through the use of a generic due diligence process, an industry-specific code, or a personalised procedure. The legislation outlines that the process should be objectively reasonable and practicable, and meet the ordinary definition of due diligence.

Process

The due diligence process involves a desktop assessment and visual inspection. The desktop assessment includes research into previous archaeological assessments in the area, a standard Aboriginal Heritage Information Management System (AHIMS) search, and if results are discovered within the search area, an extensive AHIMS search. Other assessment items that should be included in the process include landscape features such as creeks, lakes, ridgelines and rock shelters.

If a heritage item is located on-site, two initial options are available:

  • Option 1: Avoid the location to mitigate harm. This could include an exclusion zone around the item;
  • Option 2: Conducting an Aboriginal Cultural Heritage Assessment Report in order to apply and gain an Aboriginal Heritage Impact Permit (these are discussed in the following sections).

Community consultation can also form part of the due diligence process. While it is not necessary at this level of assessment, it may lend additional support to a report. When conducting community consultation, the normal body to consult is the Local Aboriginal Land Council. If you are unable to determine the correct land council to contact, it may be appropriate to contact the NSW heritage department to ask for advice.

Advantages
  • Speed of assessment, this may be able to be completed within a few weeks depending upon availability and complexity of the job in question
  • Lower cost compared to other heritage procedures
Disadvantages
  • May not fulfil the requirements set by government departments for assessment (such as outlined in SEARs)
  • If heritage items are identified which cannot be avoided, other procedures are then required

Aboriginal Cultural Heritage Assessment (ACHA) Report

The ACHA is an assessment that requires community consultation, with thorough requirements and strict processes.

Process

The ACHA requirements outline that a period of approximately 90 days is necessary for the process – this is the quickest that an assessment could take place. The process includes:

    • Initial consultation with Registered Aboriginal Parties (RAPs) listed in the Aboriginal Cultural Heritage Consultation Requirements for Proponents. These initial parties then provide names of additional parties that could have an interest in the project;
    • Parties whose names have been provided must then be contacted and there is also the requirement to place an advertisement in the local newspaper calling for any other interested parties to register. A minimum of 14 days from the date a letter/email is sent and advertisement is published is required under the legislation to allow people to respond;
    • Once the registration period has ended, a field assessment methodology can be sent to all registered parties. This stage can include asking if parties agree/disagree with the intended methodology, if they have any cultural information which they are able to share that will assist in the assessment, and if they know other parties that could hold cultural information that could be relevant for the project. A minimum of 28 days is required for this review period;
    • Once the input has been received and the methodology finalised, the fieldwork is able to be conducted. Note that at this stage, the legislation does not require the employment of registered parties, however, it is considered best practice to involve registered parties in the field assessment. This may include financial compensation;
    • The resulting draft report requires a 28-day period for registered parties’ response;
    • Once the consultation periods have been satisfied, the report can be finalised (incorporating any feedback from RAPs) and issued to the client.

Please note: that the legislation has requirements about who can undertake an ACHA report and the assessment can take place without a due diligence assessment occurring.

Advantages
  • Can gain additional information about the area that was not readily available without consultation.
Disadvantages
  • Time required for assessment
  • If heritage items are found and can’t be avoided an Aboriginal Heritage Impact Permit will be required

Aboriginal Heritage Impact Permit (AHIP)

An AHIP requires a number of conditions be met including the creation of an ACHA report, and answering questions and providing additional information to the Department necessary for a determination.

Process

The process for the department to assess an AHIP takes 60 days and this assessment timeframe does not include the time it takes to reply to questions and information requests by the Department. The fee for the AHIP is dependant on the cost of the job and can be up to $2,660 for projects over $5 million. Please note that projects under State Significant Development (SSD) do not require AHIPs once the project is approved.

Advantages

Legal process.

Disadvantages

Timeframe for application to be processed (the Department can take additional time above the nominated 60 days if busy and a timeframe should be provided when application is submitted).

Aboriginal Cultural Heritage Management Plan (ACHMP)

An ACHMP is a formal document developed in consultation with the Department and Registered Aboriginal Parties (RAPs). This process may not be relevant for all projects and an ACHMP is typically set up for projects with ongoing work (for example, a mine site) where continued consultation and a structured heritage management procedure is required. Management procedures could include creating and maintaining a designated ’keeping location‘ for finds and eventual relocation on-site, or a formal structure to how regular consultation is carried out (for example, annual meetings/reports, a roster of RAPs for anticipated fieldwork, and so on).

Process

The ACHMP should be drafted around the particulars of the project. When a draft is complete, engage the RAPs for comments, further management techniques and general feedback. This may take a few rounds of consultation, including the consultation and approval from the Department.

Advantages
  • Can be tailored for the project.
Disadvantages
  • Consultation could add further time to the project.
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