MORE THAN FLORA AND FAUNA. 1 · MORE THAN FLORA AND FAUNA. 5 Executive Summary The NSW Aboriginal...

1MORE THAN FLORA AND FAUNA.

2 MORE THAN FLORA AND FAUNA.

Cover Photo: Ray Kelly Jnr of Burrgati [cultural] [exchange].

Photo by Sarah Puckeridge, NSWALC Media and Marketing.

For more information about this submission contact the Land,

Policy and Research Unit of the NSW Aboriginal Land Council by

phone on 02 9689 4444.

Copies of NSWALC submissions can be downloaded from

www.alc.org.au.


JULY 2009


Table of Contents

Executive Summary 5

1. Introduction 9

a. This submission 9

b. Consultation about the proposed reforms 10

2. The Land Council Network 12

3. Overview of the current culture and heritage system in NSW 14

a. The National Parks and Wildlife Act 14

b. Illegal destruction of culture and heritage 15

c. Aboriginal Heritage Impact Permits (AHIPs) 16

d. Challenges to permits 17

e. Other relevant legislation 18

4. Positive reform of the culture and heritage system 20

5. Recommendations in response to the proposed changes 22

a. New offences, defences and penalties 22

b. Due Diligence Guidelines 25

c. Remedial Directions 27

d. More ‘flexible’ AHIPs 28

e. Factors to considered by the Director General 29

f. Challenges to AHIPs 31

g. Aboriginal Cultural Heritage Advisory Committee 32

h. Joint Management of National Parks 33

i. New Regulations 34

6. Recognition of Aboriginal peoples’ culture and heritage rights 35


Executive Summary

The NSW Aboriginal Land Council (NSWALC)is the peak representative body forAboriginal people in NSW. Theresponsibilities of NSWALC and LocalAboriginal Land Councils (LALCs) under theAboriginal Land Rights Act 1983 (ALRA)include the protection and promotion ofAboriginal culture and heritage.

The NSW Government is proposing to makesignificant changes to the primary law forthe protection of Aboriginal culture andheritage, the National Parks and Wildlife Act1974. Part 6 of the National Parks andWildlife Act provides for the issuing ofpermits authorising damage or destructionto Aboriginal cultural heritage (also knownas Aboriginal Heritage Impact Permits, orAHIPs).

In April 2009 the NSW Government releasedthe National Parks and Wildlife AmendmentBill 2009 (also known as the Omnibus Bill)which would amend the National Parks andWildlife Act and a range of other legislationincluding the Threatened SpeciesConservation Act 1995. The Bill is due to bepresented to NSW Parliament in September2009.

Public comments have been invited on theOmnibus Bill through the Department ofEnvironment and Climate Change (DECC).*Comments have also been invited on twopolicies which are due to adopted into theNational Parks and Wildlife Regulations, atthe same time as the Omnibus Bill isintroduced.

These are:

· Draft Due Diligence Guidelines for theProtection of Aboriginal Objects in NSW(the Due Diligence Guidelines); and

· Community Consultation Requirementsfor Proponents – Part 6 of the NationalParks and Wildlife Act (the CommunityConsultation Requirements), to replacethe existing policy entitled InterimCommunity Consultation Requirementsfor Applicants.

The attached submission outlines in detailNSWALC’s response to the proposed cultureand heritage reforms. It has been developedfollowing detailed research and consultation.The key recommendations from thissubmission are outlined in brief in theExecutive Summary. NSWALC has prepared aseparate submission in response to thechanges which are planned to theCommunity Consultation Requirements.

Recognition of Aboriginal peoples’ cultureand heritage rights

The recommendations made by NSWALC inthis submission are designed to betterrecognise the culture and heritage rights ofAboriginal people.

In providing comment on the proposedchanges in its two submissions, NSWALCrecognises that the purpose of the OmnibusBill is not to make major reforms to thecurrent regime for the protection ofAboriginal culture and heritage.

Unfortunately, as clearly outlined in the bodyof this submission, the current regime underthe National Parks and Wildlife Act has failedto protect Aboriginal culture and heritage.


* As of 27 July 2009 the Department is now the Department ofEnvironment, Climate Change and Water (DECCW).


The current system of issuing permits has ledto wide-scale destruction of Aboriginalcultural heritage and urgent reform isneeded.

The National Parks and Wildlife Act does notcurrently include provisions for Aboriginalpeople to be directly involved in the processfor determining the significance of theircultural heritage, or determining whathappens to Aboriginal places or objects. Itdoes not include a right for Aboriginal peopleto be consulted or informed about permits todamage and destroy their cultural heritage.

Instead, the National Parks and Wildlife Actplaces the power to make decisions relatingto Aboriginal cultural heritage with theDirector General of DECC. The high rate ofpermits issued to damage or destroyAboriginal cultural heritage, the lack oftransparency around when and to whompermits are issued and the large number ofappeals brought by Aboriginal people againstthe issue of permits have added to anunfortunate perception in the communitythat DECC’s role has been to facilitate thedestruction of Aboriginal cultural heritage,rather than to protect it.

The proposed amendments provide anopportunity for the National Parks andWildlife Act to be amended to better protectAboriginal cultural heritage, and to increaseAboriginal people’s control over thatheritage.

SUMMARY OF RECOMMENDATIONS

a. New offences, defences and penalties:The introduction of reforms to deterindividuals and corporations fromunauthorised destruction of Aboriginalcultural heritage are very welcome.

NSWALC supports the proposed changesto the National Parks and Wildlife Actwhich would create new offences andstricter penalties for the illegaldestruction of Aboriginal culturalheritage.

However, NSWALC does not support theamendments which will allow for newdefences against illegal destruction andlimit the definition of ‘harm’ throughregulations. Taken as a whole theamendments threaten to undermine anyincreased protection offered by the newoffences.

b. Draft Due Diligence Requirements: Theproposed Due Diligence Requirementsrequire significant amendment beforethey can fulfil their aim of providingguidance as to the level of care thatdevelopers and other persons must taketo avoid damage to Aboriginal objects, orto avoid prosecution if they dounknowingly cause damage.

NSWALC strongly opposes the adoption ofthe Due Diligence Requirements intoregulations in their current form.

c. Remedial directions: NSWALC supportsthe proposed amendments which givethe Director General of DECC the powerto issue directions that a person takeaction to conserve, maintain or restoredamage that has been caused toAboriginal cultural heritage.

Remedial action must be developed inconsultation with the Aboriginalcommunity, and the proceeds of any finesraised should go towards compensatingthe community which has suffered theloss of its cultural heritage.



d. More ‘flexible’ AHIPs: The current systemfor the management of Aboriginalcultural heritage through the issuing ofAboriginal Heritage Impact Permits(AHIPs) has led to wide-scale destructionof Aboriginal cultural heritage. Thecurrent system has clearly failed toprotect Aboriginal cultural heritage andrequires urgent reform.

NSWALC does not support proposedamendments which broaden the scope ofAHIPs or further weigh the process ofissuing AHIPs in favour of development,at the expense of Aboriginal culturalheritage protection. This includesproposed changes to allow permits to beissued for ‘classes’ of Aboriginal objects orparticular activities, and new powers forthe Director General to vary AHIPswithout consultation with the Aboriginalcommunity.

e. Factors to be considered whenconsidering the issue of an AHIP:NSWALC welcomes clarification as to thefactors that the Director General musttake into account when deciding whetheror not to issue a permit.

However, the proposed factors mustinclude provision for Aboriginal people tomake direct, independentrepresentations to the Director Generalabout their cultural heritage, which willbe considered.

f. Challenges to permits: The rights ofAboriginal people to challenge the issuingof an AHIP must be strengthened ratherthan wound back. NSWALC does notsupport the proposed time limit of 3

months to appeal the process for issuingan AHIP to the Land and EnvironmentCourt. A right for Aboriginal people to beinformed when an AHIP is issued,amended or varied should also beadopted into the National Parks andWildlife Act.

g. Aboriginal Cultural Heritage AdvisoryCommittee: NSWALC welcomes thechanges that would ensure that allpersons on the committee are Aboriginalpersons.

h. Joint management of National Parks:NSWALC strongly opposes the proposedamendment which removes the impliedobligation for the Minister for theEnvironment and Climate Change tonegotiate the hand-back of culturallysignificant park or reserve land to thetraditional Aboriginal Owners.

NSWALC also strongly opposes anychanges which would undermine therelated hand-back provisions under theAboriginal Land Rights Act.

i. New Regulations: The proposed changesinclude provisions for National Parks andWildlife Regulations to be made whichreflect the proposed Due DiligenceRequirements and the Draft CommunityConsultation Requirements.

As outlined in NSWALC’s separatesubmission regarding the DraftCommunity Consultation Requirements,NSWALC does not support the adoption ofthe Draft Community ConsultationRequirements into regulation in theircurrent form. The proposed newConsultation Requirements do not,overall, represent an improvement onthe current policy and their adoption intoregulation would only serve to furtherentrench existing problems with theprocess.



Process for adoptingthe proposed changes

NSWALC has previously stated itscommitment to work in partnership withDECC and other key stakeholders in thedevelopment and/ or revision of significantlaw and policies impacting on Aboriginalpeople. This includes the proposed law andpolicies in relation to culture and heritage,which are priority issues for Aboriginalcommunities and the land council network.

NSWALC would like to re-state itscommitment to working with DECC inrelation to the amendments, the Draft DueDiligence Requirements, and the DraftCommunity Consultation Requirements.

However NSWALC has serious concernsabout the short timeframes planned for theadoption of the Omnibus Bill and the relatedRegulations and policies. The short timeframes to date have significantly limited theopportunity for community comment.

NSWALC strongly opposes the making of lawand policies relating to Aboriginal culturalheritage without consultation with NSWALCand other bodies with statutory andtraditional responsibilities for culture andheritage in NSW, including Local AboriginalLand Councils, native title claimants andholders, NTS Corp, and Aboriginal Owners.

It is essential that law and regulationsrelated to culture and heritage not beadopted without proper consultation withthese groups, which includes allowing theAboriginal community the opportunity toview the final versions of the documentsbefore they are tabled in Parliament.

More information

For more information about this submissioncontact the Land, Policy and Research Unitof the NSW Aboriginal Land Council by phoneon 02 9689 4444. Copies of NSWALCsubmissions can be downloaded fromwww.alc.org.au.



In mid-April 2009 the Department ofEnvironment and Climate Change (DECC)released a Consultation Draft of theNational Parks and Wildl ife Amendment Bill2009, also known as the Omnibus Bill.

The Omnibus Bill proposes significantamendments to the Aboriginal culture andheritage provisions of the National Parks andWildlife Act 1974, which is the primary law inNSW for the protection and management ofAboriginal culture and heritage.

The Bill also makes amendments to a rangeof administrative provisions in the NationalParks and Wildl ife Act, the ThreatenedSpecies Conservation Act 1995 and otherlaws.

The Omnibus Bill proposes new offences forthe illegal destruction of Aboriginal cultureand heritage, including a strict liabilityoffence which would not require a person tointend to have harmed an object to becharged with an offence.

Also released with the Omnibus Bill was theConsultation Draft of the Due DiligenceGuidelines for the Protection of AboriginalObjects in NSW (the Due DiligenceGuidelines).

The Due Diligence Guidelines are designed toprovide guidance as to the level of care thatdevelopers and other persons must take toavoid damage to Aboriginal objects or placesand, if they do cause harm to an object, toraise a defence that they met the standardof care required.

1. Introduction.

At the same time DECC released the DraftCommunity Consultation Requirements forProponents (the Draft CommunityConsultation Requirements).

This proposed policy would replace theexisting policy (the Interim CommunityConsultation Requirements) which outlinesthe process for consulting with theAboriginal community to determine thesignificance of Aboriginal cultural heritage,when applying for a permit to authorisedamage or destruction to a place or object.Permits are issued by DECC and are known asAboriginal Heritage Impact Permits (AHIPs).

a. This submission

This submission outlines in detail the NSWAboriginal Land Council’s (NSWALC’s)response to the culture and heritage reformsproposed through the Omnibus Bill and theDraft Due Diligence Guidelines. NSWALC’sresponse to the Draft CommunityConsultation Requirements is outlined in aseparate submission.

This submission includes:

• An overview of how the current cultureand heritage system in NSW is working,and

• Specific recommendations relating toparticular sections of the Omnibus Billand the Draft Due Diligence Guidelines.


b. Consultation with the communityabout the proposed reforms

The Omnibus Bill and the Draft Due DiligenceGuidelines were released for ‘targetedconsultation’ with particular organisations,including NSWALC.1

While the documents were available onlineno information sessions or consultationswere organised with the broader Aboriginalcommunity to explain or seek feedback onthe changes.

DECC invited written submissions on the Billand policies by 7 July 2009. NSWALCrequested an extension for its submissions,which was granted until 31 July 2009.

NSWALC worked to actively promotecommunity comments on the Omnibus Billand the policies through the production ofFact Sheets, media releases, networkmessages and its website. However, theconsistent feedback from the Aboriginalcommunity was that insufficient time hasbeen given to enable meaningful comment.

DECC has indicated that it intends tourgently revise the Omnibus Bill and DraftDue Diligence Guidelines based on publiccomments received.

It is intended that Regulations be drafted toreflect or adopt the Draft Due DiligenceGuidelines and the Draft CommunityConsultation Requirements, and that thesebe presented for Cabinet approval with therevised Omnibus Bill in August 2009.

DECC has advised that the Omnibus Bill andnew National Parks and Wildlife Regulationswill be introduced in the September 2009session of the NSW Parliament. At this stagethere is no intention to release the final Billor regulations to the community forcomments before they are tabled.

As previously indicated to DECC, NSWALC hasserious concerns about the short timeframesfor the adoption of the Omnibus Bill and therelated regulations. The current processseems inconsistent with commitments madeby DECC to the cultural rights and self-determination of Aboriginal people, asrecognised in the DECC Corporate Plan 2008-2012. The process also does not seemconsistent with DECC’s commitment tocommunity consultation as outlined inexisting policies.2

NSWALC does note that consultations werepreviously undertaken, prior to 2001, inrelation to a range of changes which weremade to the National Parks and Wildlife Act.The 2001 changes included the creation of astrict liability offence and increased penaltiesfor damage to Aboriginal cultural heritage.The NSW Parliament passed the 2001changes but the Minister for theEnvironment and Climate Change has nevermoved to Gazette these changes, so theyhave not come into force.3

The proposed Omnibus Bill introduces similaroffence and penalty amendments to the2001 changes, but with new defences and alarge number of changes to other sections ofthe National Parks and Wildlife Act.

1 For details of the consultation process on the Bill see http://www.environment.nsw.gov.au/legislation/NPWamendmentBill2009.htm.

2 See for example Aboriginal Community Engagement Frameworkfor DECC (November 2007).

3 For discussion of the 2001 changes see article by Seiver‘Defining the Offence of Unlawfully Destroying AboriginalHeritage’ [2005] Indigenous Law Bulletin 11.


NSWALC also notes that some commentsregarding the Omnibus Bill were raisedduring the Information Sessions held by DECCfor the Draft Community ConsultationRequirements in May and June 2009.

However, it is not known if these commentshave been passed onto the relevant sectionof DECC or are being considered.

NSWALC opposes the introduction ofculture and heritage law and policy whereit has been developed without properconsultation with the Aboriginalcommunity.

NSWALC calls on the NSW Minister for theEnvironment and Climate Change tocommit that no new laws or regulationsrelating to Aboriginal culture and heritagewill be introduced or implemented withoutproper consultation with NSWALC andother relevant bodies.


The New South Wales Aboriginal LandCouncil (NSWALC) is the largest memberbased Aboriginal organisation in Australia.NSWALC is governed by a Council of nineCouncillors, which is elected every fouryears.

All Aboriginal adults in NSW are eligible tojoin a Land Council and vote in Land Councilelections.

NSWALC provides support to the network of121 Local Aboriginal Land Councils (LALCs).LALCs are autonomous bodies which aregoverned by boards elected by localAboriginal community members, every 2years.

The Aboriginal Land Rights Act 1983establishes Land Councils as the electedrepresentatives for Aboriginal people inNSW.

This role extends beyond representation ofthe interests of Land Council members, to allAboriginal people living in NSW.

As outlined in section 106(7) of theAboriginal Land Rights Act, NSWALC hasparticular responsibilities in relation toculture and heritage. These include:

a. to take action to protect the culture andheritage of Aboriginal persons in NSW(and)

b. to promote awareness in the communityof the culture and heritage of Aboriginalpersons in NSW.

2. The Land Council Network.

NSWALC is represented on numerous state-wide committees which provide advice tothe NSW Government on land and cultureand heritage matters, including theAboriginal Cultural Heritage AdvisoryCouncil.

Under section 52(4) of the Aboriginal LandRights Act, LALCs have similar functions toprotect and promote Aboriginal culturalheritage within their boundaries.

The obligation to consult with LALCs oncultural heritage matters is recognisedthrough a range of DECC and othergovernment agencies’ policies.

LALCs’ culture and heritage activities varyacross councils, but include custodianship ofculturally significant land, maintenance ofAboriginal sites, management of local sitedatabases, heritage site assessments,management of cultural centres and KeepingPlaces, participation in advisory committeesand a range of projects in the community toimprove awareness and understanding ofAboriginal cultural heritage.


NSWALC recognises and respects the role oftraditional owner groups in relation toculture and heritage.

As outlined in previous culture and heritagesubmissions to DECC,4 NSWALC’s position isthat consultation on culture and heritagematters must include those organisationswith statutory responsibilities for culture andheritage.

These are:

· NSWALC and LALCs,

· Native title claimants and holders, andNTS Corp,

· Aboriginal Owners and the Registrar ofthe Aboriginal Land Rights Act.

NSWALC’s commitment to work inpartnership with traditional owner groups isreflected in NSWALC policies and strategicdocuments, including the NSWALC CorporatePlan 2008-2012.5

4 See for example NSWALC’s response to the Review of the InterimCommunity Consultation Requirements for Applicants, asforwarded to Director Mark Gifford of DECC in April 2008.

5 Priority Five of the NSWALC Corporate Plan 2008-2012includes to develop ‘guidelines that identify, protect andpreserve cultural heritage in accordance with the traditionalcustoms, obligations and responsibilities of individualTraditional Owner groups in NSW.’


The National Parks and Wildlife Act 1974 isthe primary source of legal protection forAboriginal cultural heritage in NSW. TheNational Parks and Wildlife Act isadministered by the NSW Department ofEnvironment and Climate Change (DECC).

The objects of the National Parks and WildlifeAct include:

Section 2A

(1)(b) the conservation of objects, placesor features (not including biologicaldiversity) of cultural value within thelandscape, including, but not limited to:

(i) places, objects and features ofsignificance to Aboriginal people....

Section 85 of the National Parks and WildlifeAct states that the Director General ofDECC* has responsibility for the proper care,preservation and protection of Aboriginalobjects and places. Aboriginal objects includeobjects on both public and private lands.

· An Aboriginal object under the NationalParks and Wildlife Act is defined as ‘anydeposit, object or material evidence (notbeing a handicraft made for sale) relatingto the Aboriginal habitation of the areathat comprises New South Wales, beinghabitation before or concurrent with (orboth) the occupation of that area bypersons of non-Aboriginal extraction, andincludes Aboriginal remains’ (Section 5).

· An Aboriginal place is defined as ‘a placethat, in the opinion of the Minister, is orwas of special significance with respect toAboriginal culture’ (section 84). TheMinister establishes an Aboriginal placeby order published in the Gazette.

One of the issues with the National Parks andWildlife Act is that the definition ofAboriginal culture and heritage in terms of‘places’ and ‘objects’ is based on anarchaeological understanding which does notaccord with Aboriginal peoples’ ownconcepts of culture.6

Aboriginal peoples’ definition of culture isnot limited to particular places or physicalevidence of Aboriginal existence on the land.It includes both the tangible and intangiblethings that tell a story about the land,environment, people, family, history, law,community and spirituality.7

The limited definition of cultural heritageunder the National Parks and Wildlife Act hasmade it difficult to provide adequateprotection for some Aboriginal sites.8

3. Overview of the current system in NSW.

6 See Chalk article ‘Exploring Recent Developments in AboriginalCultural Heritage Protection in NSW’ (2007) as presented to theLexis Nexis Environmental Law Conference, Sydney.

7 See Seiver [2005] as referenced above and O’Dwyer ‘AboriginalHeritage Under Threat in NSW’ (March 2007) Chain ReactionMagazine #99, as available to download from www.foe.org.au.

8 See for example the case study of a ‘Keepara Tree’ (DiamondTree) which was protected as an Aboriginal area under theNational Parks and Wildlife Act, but without an appropriatebuffer zone, leaving the tree exposed for viewing from the localplaying field - as noted in Caring for Country: A Guide toEnvironmental Law for Aboriginal Communities by theEnvironmental Defenders Office NSW (updated 2009 edition).Other examples include reported massacre sites where nophysical remains are present to be ‘impacted’ or protected. Formore detail see discussion of case law in relation to thechallenge of AHIPs by Aboriginal people, in Discussion Paper:Reforming New South Wales’ Laws for Protection of AboriginalCultural Heritage, prepared by Neva Collings of theEnvironmental Defender’s Office for the 28 May 2009 Cultureand Heritage Roundtable.

* The National Parks and Wildlife Act gives powers to therelevant Minister and Director General of the Department‘administering the Act’. This is currently the Department ofEnvironment and Climate Change, but became the Departmentof Environment, Climate Change and Water as of 27 July2009.


The National Parks and Wildlife Act providesthat all Aboriginal objects are considered tobe ‘property of the Crown’ (with someexceptions),9 and gives the Director Generalthe power to approve damage or destructionto those objects and to Aboriginal places,through the issuing of ‘consents’ undersection 87 and section 90 of the Act.

Aboriginal people do not have a recognisedright through the legislation to direct whathappens with their cultural heritage or totake action if it is under threat. The inclusionof Aboriginal culture in flora and faunalegislation has also been criticised asoutdated and paternalistic.10

Another essential problem with the NationalParks and Wildlife Act arises from the factthat the Director General of DECC is bothresponsible for the protection of Aboriginalcultural heritage and responsible for issuingthe permits which authorise damage to anddestruction of that heritage.

The conflict between these two roles has ledto the criticism that the National Parks andWildlife Act does not protect Aboriginalheritage, but merely regulates itsdestruction.11

b. Illegal destruction of culture andheritage

Currently, if a person disturbs or moves anAboriginal object, or ‘knowingly’ damages anAboriginal object or Aboriginal place withouta permit, they can be found guilty of anoffence under the National Parks and WildlifeAct. The standard requires that a personknew that an object was an Aboriginalobject.12 There is also an obligation onsomeone to notify DECC within a reasonabletime if they become aware of the location ofan Aboriginal object.13

The Director General of DECC has the powerto prosecute people who unlawfully destroyor damage Aboriginal objects or places, andcan take other action to protect culturalheritage such as issuing a stop work order.The Minister for the Environment andClimate Change can issue an interimprotection order.

The current level of penalties is quite low,with a maximum penalty of $5,500 orimprisonment for six months for anindividual, and $22,000 for a corporation.

In total, between 2005 and 2008, therewere only seven prosecutions for causing orpermitting damage to Aboriginal culturalheritage.14

9 Exceptions include objects which were located in privatecollections prior to 13 April 1970 and have not been sinceabandoned, and objects which are ‘real property’ (i.e. objectssuch as rock art, rock carvings or scarred trees that are attachedto private land and are legally considered part of that land).Aboriginal objects can also be handed back to the ownership ofAboriginal people. See Part 6 of the National Parks and WildlifeAct.

10 See Kennedy ‘Operative Protection or Regulation ofDestruction? The Validity of Permits to Destroy IndigenousCultural Heritage Sites’ [2005] ILB 57, as available to downloadfrom www.austlii.edu.au.

11 See Ridge and Seiver ‘Carriage – An Elder’s Journey through theCourts’ [2005] ILB 10 and EDO Discussion Paper (2009), asnoted at footnote 8.

12 ‘Reckless indifference’ will not be enough – see Histollo Pty Ltdv Director-General of National Parks and Wildlife Service(1998) 45 NSWLR 661, quoted in Chalk (2007), as noted above.

13 Section 91 National Parks and Wildlife Act.

14 All prosecutions were successful. See Answer by AttorneyGeneral representing the Minister for the Environment andClimate Change to Question on Notice Number 2384, NSWLegislative Council (5 January 2009) as available throughwww.parliament.nsw.gov.au.


In October 2008 it was reported that no stopwork orders or interim protections ordershad been issued in the previous 12 months.15

It is generally accepted that the currentpenalties do not act as a deterrent againstdamage to Aboriginal cultural heritage.DECC has advised that the currentrequirement to find that someone‘knowingly’ damaged an object has made itdifficult to successfully prosecute illegaldestruction.

However, there have also been concernsraised that DECC is not willing to take actionagainst people who have illegally damagedAboriginal cultural heritage, and has notprovided adequate resources to supportprosecutions.16

For more information about the currentpenalties see NSWALC Culture and HeritageFact Sheet 2 – ‘New Fines and Offences forthe Destruction of Aboriginal Culture andHeritage’ which is available to downloadfrom the NSWALC website atwww.alc.org.au.

c. Aboriginal Heritage ImpactPermits

Damage or destruction to Aboriginal culturalheritage is authorised through an AboriginalHeritage Impact Permit, or AHIP. Thesepermits have also previously been referredto as section 87 and section 90 consents.

The Director General of DECC is responsiblefor issuing AHIPs after assessing whether aproposed activity will impact on anAboriginal object or place. In practice, theDirector General delegates the processing ofAHIPs to staff working within DECC’sEnvironmental Protection and RegulatoryGroup.

It is difficult to get a clear picture about thenumber of AHIPs issued, as official data is notmade available. DECC has advised that itdoes not systematically record data inrelation to the issuing of AHIPs.

The consistent feedback from the Aboriginalcommunity is that there is a high level of‘approved’ destruction of importantAboriginal cultural heritage through theissuing of AHIPs, and that the AHIP process isnot protecting important sites.17

In response to Questions on Notice in NSWParliament to the Minister for theEnvironment and Climate Change it is knownthat:

· Between 1990 and July 2007approximately 800 s90 consents (iepermits which authorise destruction)were issued;

17 Distress at the current process for the issuing of AHIPs wasraised repeatedly during recent consultations held by DECC in2009 in relation to the Aboriginal Land Management Frameworkand later in relation to the Draft Community ConsultationRequirements. See also articles, as referenced above, by Ridgeand Seiver [2005], Kennedy [2005], O’Dwyer (2007) and theEDO Discussion Paper (2009).

15 Minister for the Environment and Climate Change, Answer toQuestions on Notice 2 and 3, as asked by Ian Cohen MLC,Legislative Council General Purpose Standing Committee 5, 16October 2008 (Budget Estimates), transcript available throughwww.parliament.nsw.gov.au.

16 See for example Ridge and Seiver [2005], as noted above.


· The rate of issue of AHIPs has beenincreasing over the years, with aroundhalf the known s90 consents issued in thefourteen years from 1990 to 2004, andthe other half issued in the followingthree years 2005 to 2007;

· Between 2004 and 25 May 2009approximately 958 s87 permits and s90consents were issued;

Note – the figures prior to 2004 do not includes87 consents (ie consents to damage or defacecultural heritage). If s87 consents wereincluded the early figures would be much

higher.

· In the first five months of 2009 already103 s87 and s90 permits have beenissued. This is a rate of 5 a week; and

· Around a quarter of the permits issuedbetween 2007 and 2009 were issued togovernment agencies. Of these thelargest number were issued to the Roadsand Traffic Authority, with the secondlargest number to DECC itself.18

NSWALC calls for the urgent collection andrelease of comprehensive data on theapproval of AHIPs, including how many areissued and who they are issued to.

d. Challenges to permits

Under the National Parks and Wildlife Act, a‘person dissatisfied with any condition orrestriction’ in a s87 or s90 consent (a permit)can appeal to the Minister for theEnvironment and Climate Change.19 It doesnot appear that any appeals have recentlybeen made by Aboriginal people, thoughagain the data is not made readilyavailable.20

Aboriginal people can also challenge apermit in the Land and Environment Court,but this appeal is only available in limitedcircumstances. For an appeal to be successfulan issue must be found with the process ofissuing the AHIP. The Court has the power toset aside the Director General’s decision toissue a permit, but this leaves open theopportunity for the Director General toremake the decision and issue anotherpermit for the same site or object.

To date, only a small number of casesbrought by Aboriginal people to challenge apermit have been successful.21

18 See Answers by the relevant Ministers representing the Ministerfor the Environment and Climate Change, to Question on NoticeNumber 0127 (31 July 2007), Number 2091 (28 October2008), Number 3009 (7 May 2009) and Number 3120 (17 June2009), Legislative Council, asked by Ian Cohen MLC, as availableto download from the NSW Parliament website atwww.parliament.nsw.gov.au.

19 See section 90(3) of the National Parks and Wildlife Act.

20 In response to a Question on Notice Number 2091 (28 October2008), in the NSW Legislative Assembly, as noted above, theMinister representing the Minister for the Environment andClimate Change advised there were no appeals by dissatisfiedapplicants for permits in 2005-8.

21 See case law summaries provided in EDO Discussion Paper(2009) as quoted above and Chalk (2007), also as quotedabove.


The National Parks and Wildlife Act does notinclude formal recognition that Aboriginalpeople have a right to be consulted inrelation to the significance of their culturalheritage or the issuing of permits, but recentcases have led to some recognition of thestandards for consultation with Aboriginalpeople in relation to AHIPs.22

Generally, however, legal challenges havenot resulted in preventing damage ordestruction of Aboriginal sites or objects.Aboriginal groups who make legal challengesalso risk costs being awarded against them.23

The number of challenges made byAboriginal people to the issuing of permits,and the low level of success of thosechallenges, further raises serious concernabout the level of protection of Aboriginalcultural heritage being offered by thecurrent system.

Based on the evidence available it is clearthat the current system for themanagement of Aboriginal culturalheritage through the issuing of permitshas led to wide-scale destruction ofAboriginal cultural heritage.

The National Parks and Wildlife Act hasfailed to protect Aboriginal culturalheritage and requires urgent reform.NSWALC calls on the NSW Government tourgently support an independent inquiryinto the management and protection ofAboriginal cultural heritage in NSW.

e. Other culture and heritagelegislation

Other NSW and Commonwealth legislationalso contain some provisions for theprotection of Aboriginal cultural heritage.

This includes the Heritage Act 1977, whichestablishes the Heritage Council and theState Heritage Register, and is administeredby the Department of Planning. Items ofheritage value can be added to the StateHeritage Register by the Minister forPlanning with advice from the HeritageCouncil. Listing on the State HeritageRegister provides objects and places with ahigher level of protection, because theycannot be demolished, redeveloped orotherwise altered without the approval ofthe Heritage Council.

However, projects assessed under Part 3A ofthe Environmental Planning and AssessmentAct 1979 may override this.

There are currently only 9 places listed fortheir significance for Aboriginal people onthe State Heritage Register, from a total ofaround 1500 listings.24

The Heritage Council has indicated itsintention to add more items of Aboriginalheritage significance by identifyingAboriginal heritage as one of its four‘themes’ in 2009- 2010.25

The Environmental Planning andAssessment Act 1979 is the main planninglaw in NSW. It outlines the requirements forState, Regional and Local EnvironmentalPlans and is also administered by theDepartment of Planning.

22 See for example Roy Kennedy v Director General of theDepartment of Environment and Conservation and Another[2006] NSWLEC 456, as quoted in EDO Discussion Paper(2009).

23 See for example Anderson on behalf of Numbahjing Clan withinthe Bunjalung Nation v Director General of the Department ofEnvironment and Climate Change & Anor [2008] NSWLEC 299,quoted in EDO Discussion Paper (2009).

24 See Report of the Independent Expert Panel: A Review of theNSW Heritage Act 1977 (2009), available to download from theNSW Heritage Council website at www.heritage.nsw.gov.au/09_subnav_02.htm.

25 See the Heritage Council website at www.heritage.nsw.gov.au.

26 See s117 Direction number 2.3, in relation to the EnvironmentalPlanning and Assessment Act, issued 19 July 2007.


Recent changes require Local Councils toredraft their Local Environmental Plans(LEPs) to provide for the conservation andmanagement of Aboriginal culturalheritage.26

Local Councils have until 2011 to ensure thattheir LEPs have been revised to includeAboriginal cultural heritage.27

Aboriginal Advisory/Consultative committeesmay be established by a Local Councilresolution under section 355 of the LocalGovernment Act 1993.28

There is currently a low level ofunderstanding within the Aboriginalcommunity about NSW planning laws, andhow they interact with other culture andheritage requirements. LALCs haveexpressed concerns at recent consultationswith DECC that the Aboriginal community isnot being informed or properly involved inthe process of developing LEPs.

Part 3A of the Environmental Planning andAssessment Act 1979 allows the Minister forPlanning to designate particulardevelopments as ‘state significant’, andremove the requirements for heritageassessments, including Aboriginal culturalheritage assessments.

A section 87 or section 90 permit is notrequired for Part 3A developments.However, the Minister for Planning oftenrequires proponents to provide an Aboriginalcultural heritage assessment similar to thatrequired when applying for a permit.

During 2007-08, the Minister for Planningdetermined 296 projects under Part 3A. Ofthese, 295 were approved and only 1 wasrefused.29

27 NSW Department of Planning, Local Plan Making, Last updatedThursday 18 June 2009, accessed 18/6/2009,www.planning.nsw.gov.au/planningsystem/local.asp.

28 NSW Department of Local Government, Engaging withAboriginal Communities: A resource kit for Local Government inNSW (2007) page 21. Available at the Department of LocalGovernment website www.dlg.nsw.gov.au.

29 See NSW Department of Planning, NSW Major DevelopmentMonitor 2007-08, NSW Government 2008 page 7, accessed 18/6/2009 www.planning.nsw.gov.au/corporate_publications/pdf/major_development_monitor_301008.pdf.

Data is not currently published as to howPart 3A developments have impacted onAboriginal cultural heritage.

Urgent action is needed to ensure thatAboriginal culture and heritage outcomesare being monitored in relation to Part 3Aapprovals, and that the Part 3A approvalprocess has not led to an increase in therate of destruction of sites.

Other State and Federal legislation whichregulates the protection of Aboriginalculture and heritage in NSW includes the:

· Aboriginal Torres Strait Islander HeritageProtection Act 1984 (Cth), which providesthe power for the Federal Minister forthe Environment to issue an emergencyorder where a State has failed to protecta place, area or objects. Historically theFederal Minister has rarely used thispower. A review of the Act has recentlybeen announced.

· Native Title Act 1993 (Cth), whichprovides certain rights to Aboriginalpeople who become registered nativetitle claimants, and a range of rights if anative title claim is successful. In February2009 there were 34 active claimantapplications in NSW and the ACT, eightregistered Indigenous Land UseAgreements (ILUAs) and a number ofILUAs under negotiation.30

· Environmental Protection andBiodiversity Act (Cth), which establishesthe National Heritage List for places thatare of ‘outstanding’ heritage value to thenation and the Commonwealth HeritageList for lands and waters of significance.

It is important to note that this submissionfocuses on the National Parks and WildlifeAct’s provisions, and does not evaluate otherlegislation in detail.

30 From the National Native Title Tribunal website www.nntt.gov.au/Pages/default.aspx (February 2009).


As outlined above, Aboriginal peoples’concepts of culture and heritage areinherently linked to issues of access to andmanagement of land and natural resources.Unfortunately, it is outside the scope of thissubmission to discuss in full detail the rangeof environment and natural resourcelegislation and policy in NSW which impactson Aboriginal peoples’ ability to access toland for cultural purposes.

It is clear that the current system for theprotection of Aboriginal culture and heritagein NSW is in need of urgent reform. Currentlaw does not recognise Aboriginal people asthe owners and primary determiners of theirculture and heritage, and has failed toprovide protection for Aboriginal sites.

NSWALC demands wide-ranging andurgent reform of the Aboriginal cultureand heritage system through thedevelopment of an Aboriginal CulturalHeritage Bill and an Aboriginal CulturalHeritage Commission based on recognitionthat the ownership of Aboriginal culturalheritage lies with Aboriginal people.

For more than two decades there have beencalls for the development of an AboriginalCultural Heritage Bill for NSW.

In 1983, when the Aboriginal Land Rights Actwas introduced, the then Minister forAboriginal Affairs, Frank Walker, stated the

Government’s intention to introduce aculture and heritage bill. He stated:

“… there is one element missing fromwhat could be considered an essentialelement of land rights legislation – thatis, the provision for the protection ofsacred sites and sites of significance. … Itis my intention to seek the assistance ofthe new Aboriginal councils that will beformed under the proposed legislationbefore introducing an Aboriginalheritage commission bill for theprotection and ownership of sacred andsignificant sites.”31

This Act was never developed and NSWremains the only state without separatelegislation with the primary aim ofprotecting Aboriginal cultural heritage.32

Recently, a review was undertaken of theNSW Heritage Act 1977. The review did notdeal in detail with the issue of Aboriginalcultural heritage protection but it was notedthat there is considerable overlap betweenthe different laws relating to Aboriginalcultural heritage in NSW. The final report ofthe Heritage Review states that the issuesare sufficiently complex to require ‘a broad,separate investigation into the managementof Aboriginal heritage’.33

No timeline for an Aboriginal heritage reviewhas been announced, and it does not appearthat such a review is planned.

4. Positive reform of the culturaland heritage system.

31 Former Minister for Aboriginal Affairs Frank Walker, 24 March1983, Second Reading speech for the Aboriginal Land RightsBill, quoted in Hansard at 5090, Legislative Assembly, NSWParliament, as available from Hansard archive atwww.parliament.nsw.gov.au.

32 See discussion of culture and heritage law in other states andterritories in EDO Discussion Paper (2009) as noted above.

33 At page 80, Report of the Independent Expert Panel: A Reviewof the NSW Heritage Act 1977 (2009), as noted above.


At an international level, the AustralianGovernment has recently affirmed itssupport for Aboriginal cultural rights throughthe endorsement of the Declaration on theRights of Indigenous People. The Declarationstates that:

Article 8

1. Indigenous peoples and individuals havethe right not to be subjected to forcedassimilation or destruction of their culture.

2. States shall provide effective mechanismsfor prevention of, and redress for:

(a) Any action which has the aim or effectof depriving them of their integrity asdistinct peoples, or of their culturalvalues or ethnic identities;

(b) Any action which has the aim oreffect of dispossessing them of theirlands, territories or resources;

(c) Any form of forced population transferwhich has the aim or effect of violatingor undermining any of their rights;

(d) Any form of forced assimilation orintegration;

(e) Any form of propaganda designed topromote or incite racial or ethnicdiscrimination directed against them.

Article 11

1. Indigenous peoples have the right topractise and revitalize their culturaltraditions and customs. This includes theright to maintain, protect and develop thepast, present and future manifestations oftheir cultures, such as archaeological andhistorical sites, artefacts, designs,ceremonies, technologies and visual andperforming arts and literature.

2. States shall provide redress througheffective mechanisms, which may includerestitution, developed in conjunction withindigenous peoples, with respect to theircultural, intellectual, religious and spiritualproperty taken without their free, prior andinformed consent or in violation of theirlaws, traditions and customs.

Article 12

1. Indigenous peoples have the right tomanifest, practice, develop and teach their

spiritual and religious traditions, customsand ceremonies; the right to maintain,protect, and have access in privacy to theirreligious and cultural sites; the right to theuse and control of their ceremonial objects;and the right to the repatriation of theirhuman remains.

2. States shall seek to enable the access and/orrepatriation of ceremonial objects andhuman remains in their possession throughfair, transparent and effective mechanismsdeveloped in conjunction with indigenouspeoples concerned.

Article 19

States shall consult and cooperate in goodfaith with the indigenous peoplesconcerned through their own representativeinstitutions in order to obtain their free,prior and informed consent before adoptingand implementing legislative oradministrative measures that may affectthem.

Article 25

Indigenous peoples have the right tomaintain and strengthen their distinctivespiritual relationship with their traditionallyowned or otherwise occupied and usedlands, territories, waters and coastal seasand other resources and to uphold theirresponsibilities to future generations in thisregard.

Article 31

1. Indigenous peoples have the right tomaintain, control, protect and develop theircultural heritage, traditional knowledgeand traditional cultural expressions, as wellas the manifestations of their sciences,technologies and cultures, including humanand genetic resources, seeds, medicines,knowledge of the properties of fauna andflora, oral traditions, literatures, designs,sports and traditional games and visualand performing arts. They also have theright to maintain, control, protect anddevelop their intellectual property over suchcultural heritage, traditional knowledge,and traditional cultural expressions.

2. In conjunction with indigenous peoples,States shall take effective measures torecognize and protect the exercise of theserights.


NSWALC’s response to the specific law andpolicy changes proposed by the Omnibus Billand Draft Due Diligence Guidelines areoutlined by issue below.

Overall, the proposed changes includesome positive reforms which arewelcomed, particularly the increasedpenalties and new offences. NSWALCstrongly supports these positiveamendments.

However, there are considerable problemswith the Omnibus Bill and Draft DueDiligence Guidelines in their current form.Without significant amendments there is areal risk that the changes will not lead toincreased prosecution of illegaldestruction and may facilitate increaseddestruction of Aboriginal cultural heritagethrough the issuing of AHIPs.

NSWALC cannot and does not support anychanges which would lead to furtherdestruction of Aboriginal culture heritage.

5. Recommendations in response to theproposed reforms.

a. Recommendations: Newoffences, defences and penalties

The Omnibus Bill proposes to introduce twotiers of offences for illegal destruction:

1. a ‘strict liability’ offence for harm toAboriginal objects or Aboriginal places,and

2. a ‘knowingly’ offence similar to thatwhich already exists under the NationalParks and Wildlife Act.34

The ‘strict liability’ offence is unique in that itwill not require proof that the person knewthat the object was an Aboriginal object orplace.

As outlined in section 3 of this submission, in2001 similar changes to the National Parksand Wildlife Act were passed through NSWParliament. These included the creation of astrict liability offence for the destruction ofAboriginal culture and heritage, andincreased penalties. Between 2002 and 2006all changes to the Act which were passed in2001 were proclaimed – except thoserelating to the introduction of a strict liabilityoffence.

At the time the NSW Minister for theEnvironment advised that the delay was dueto the need to provide guidance material onthe defence of ‘due diligence’, which was tobe introduced at the same time as the newstrict liability offence.

The re-introduction of the strict liabilityoffence and increased penalties to create astronger deterrence against illegaldestruction of Aboriginal cultural heritageare strongly supported.

34 See Schedule 1 [24] of the Omnibus Bill which sets out theproposed section 86.


The Omnibus proposes significant changes tothe penalties for offences related to thedestruction of Aboriginal culture andheritage.35

As previously noted, the current level of finesdo not act as an effective deterrent.

The Omnibus Bill proposes that the fines andimprisonment terms be significantlyincreased to match other legislativepenalties for environmental destruction.


CURRENT maximum penaltyfor ‘knowingly’ damaging anAboriginal OBJECT ORPLACE

$5,500 or imprisonment for6 months for an individual

$22,000 for a corporation

PROPOSED maximumpenalty for ‘knowingly’damaging an AboriginalOBJECT

$550,000 or imprisonmentfor 2 years for anindividual

$1.1 million for acorporation

PROPOSED maximumpenalty for strict liabilityoffence of damaging anAboriginal PLACE

$550,000 or imprisonmentfor 2 years for an individual

$1.1 million for acorporation

PROPOSED maximumpenalty for strict liabilityoffence of damaging anAboriginal OBJECT

$110,000 or imprisonmentfor 6 months for anindividual

$220,000 for acorporation

NSWALC strongly supports the increase infines and penalties for destruction ofAboriginal cultural heritage.

Increased resources also need to beallocated by DECC to create awareness inthe community about the changes and toensure that illegal destruction is moreeffectively investigated and prosecuted.


The offences and penalties outlined aboverelate to acts or omissions that cause ‘harm’to Aboriginal objects or places. Currently theNational Parks and Wildlife Act includes abroad definition of ‘harm’.

The Omnibus Bill proposes to introduce adefinition of harm that ‘does not include anyact or omission which is trivial ornegligible’.36

There is no definition of what is ‘trivial’ or‘negligible’ harm proposed. In addition, actscan be excluded from the definition of harmby regulation.37

It is not appropriate that this broad power todefine certain actions as not causing ‘harm’be introduced, particularly without specificconsultation with the Aboriginal community.

The ability to exclude particular acts oromissions from the definition of ‘harm’ byregulation is strongly opposed. Thelegislation must include a clear definitionof harm which effectively captures anydamage to sites and objects which affectsthe cultural heritage values and uses.

In relation to damage to Aboriginal objects,the Omnibus Bill proposes a new defence toillegal destruction, being that a person orcorporation exercised ‘due diligence’.38

According to the proposed Draft DueDiligence Guidelines, due diligence refers tothe taking of ‘reasonable and practicalmeasures to determine whether your actionsare likely to harm an Aboriginal object and, ifso, avoid that harm’.39

If a person can prove that they exercised duediligence they will not be guilty of an offenceunder the National Parks and Wildlife Acteven if they find they have damaged or

destroyed an Aboriginal object. The DraftDue Diligence Guidelines are discussed indetail in the following section.

The Omnibus Bill creates the power tointroduce other defences through themaking of regulations, including allowing forindustry Codes of Practice to be recognisedby regulation as meeting the standard of duediligence.

DECC has advised that a code of practice iscurrently being developed by the NSWMinerals Council.40

NSWALC has serious concerns about thebroad nature of the proposed defences, andthe risk that they will substantiallyundermine the increased protections to beoffered by the introduction of the newoffences and penalties.

NSWALC strongly opposes theintroduction of the power to createadditional defences for the damage ordestruction of Aboriginal objects or placesthrough regulation. Any new defencesmust be clearly and specifically definedand included as amendments to theNational Parks and Wildlife Act.

The introduction of the power to createbroad defences covering classes ofactivities or persons is not supported.

The proposal to allow industry bodies todevelop Codes of Practice which will act asa defence if they are adopted intoregulation is also strongly opposed as thispotentially represents a significantloophole.

36 See Schedule 1 [24] of the Omnibus Bill which sets outproposed section 86(8).

37 See Schedule 1 [24] of the Omnibus Bill which sets outproposed section 86(8)(f).


39 See Draft Due Diligence Guidelines, at page 6.

40 See page 2 of the explanatory information released by DECC:Summary of Proposed Amendments to the National Parks andWildlife Act 1974 and the Threatened Species Conservation Act1995, released by DECC with the Omnibus Bill in May 2009 andavailable to download from www.environment.nsw.gov.au.


b. Recommendations: Draft DueDiligence Guidelines

The proposed Due Diligence Guidelines havebeen developed by DECC to help individualswho are contemplating undertakingactivities which could impact on Aboriginalobjects. The Due Diligence Guidelines aim toprovide ‘a process whereby a reasonabledetermination can be made as to whether ornot Aboriginal objects will be impacted by anactivity.’41

If an action is likely to cause harm, theperson will need to apply for an AHIP. If theperson did not apply for an AHIP but actedwith due diligence, if they ultimately harman object they will not be guilty of anoffence.

The proposed Due Diligence Guidelinesrequire significant amendment before theycan fulfil their aim of providing guidance ofthe level of care that developers and otherpersons must take to avoid damage toAboriginal objects, or to avoid prosecution ifthey do unknowingly cause damage.

NSWALC does not support the adoption ofthe Draft Due Diligence Guidelines in theircurrent form. Significant revision,including the inclusion of additionalexplanatory information to help identifypotential Aboriginal sites and objects, isrequired for the Guidelines to be effective.

DECC has advised that the Draft DueDiligence Guidelines are designed to be‘easily implemented by any person’.42

A common issues raised by both developersand Aboriginal community is that people donot know what they are looking for, in termsof evidence of Aboriginal objects in an area.

The Draft Due Diligence Guidelines note thatexamples of Aboriginal objects includemiddens, carved or scarred trees andhearths, but provide no descriptions, photosor links to resources which could helpdevelopers understand what these objectsmight look like.

Similarly, the Draft Due Diligence Guidelinesadvise that ‘Aboriginal objects are oftenassociated with particular landscapefeatures as a result of Aboriginal people’s useof those features… Examples of suchlandscape features are rock shelters, rockoutcrops, sand dunes, sand hills, waterways,waterholes and wetlands.’43 These broadreferences to geographical features providelittle practical assistance.

More useful guidance for people wanting toidentify Aboriginal objects and sites can befound in other DECC publications, includingon the DECC website, and could be includedin the Draft Due Diligence Guidelines. Theinformation about the nature of sites andobjects reflected in the Draft Due DiligenceGuidelines also provides a limited view ofAboriginal cultural heritage. Other existingDECC policies provide a much more accuratedescription of the way in which Aboriginalcultural values exist in areas and landscapes,and the ways in which Aboriginal people usesites and areas for cultural practice.

The Draft Due Diligence Guidelines shouldbe revised with the assistance of theCulture and Heritage Division of DECC toinclude photographs and more detailedexplanatory information to assist personswith low levels of knowledge about whatAboriginal objects or sites look like orwhere they can be found. It is alsorecommended that case studies beincluded.

41 See Draft Due Diligence Guidelines.

42 See page 2 of DECC Summary, as noted above. 43 See Draft Due Diligence Requirements page 12.


The Draft Due Diligence Guidelines advisethat where land has already been ‘disturbedor ‘developed’ a person should assesswhether their activity will create ‘significantadditional surface disturbance’. If theanswer is no, then the person is advised toproceed without seeking an AHIP. Whatconstitutes ‘significant surface disturbance’is not clearly defined.

The Draft Due Diligence Guidelines mustbe revised so that they no longer definealready ‘disturbed’ land as unlikely toinclude Aboriginal sites or objects.

The Draft Due Diligence Guidelines shouldbe revised to remove the simplisticdivision between disturbed andundisturbed land.44

In many cases previous development orother activity may have taken place in anarea without proper respect for Aboriginalsites. It is wrong to assume that additionaldisturbance may not have an impact on thesite in its present form. Also, surfacedisturbance in an area near a site may havea significant impact on the way that the sitecan be used by the Aboriginal community.This approach does not encourage the‘precautionary approach’ which the DraftDue Diligence Guidelines are aiming toachieve.

The Draft Due Diligence Guidelines statethat activities which will have no or ‘low’impact on the land are also unlikely torequire a permit. Although DECC has advisedthat the range of ‘low impact’ activities is‘yet to be defined’, the suggested activitiesincluded on page 5 of the Draft DueDiligence Guidelines are of serious concern.

Activities including revegetation and ‘routinefarming activities’ such as replacing fenceshave the potential to significantly impact onAboriginal sites, but are noted as examplesof ‘low’ impact activities that would notrequire a permit.

The Draft Due Diligence Requirements alsostate that ‘low impact activities’ will includethose activities defined as ‘not being harm’to Aboriginal objects.45 As noted above,NSWALC strongly opposes the proposal toexclude particular activities from thedefinition of ‘harm’ under the National Parksand Wildlife Act. Blanket exemptions for theactivities of certain industries, such asmining, must not be allowed.

The Draft Due Diligence Guidelines mustbe revised to clearly define ‘low’ impactactivities in consultation with relevantAboriginal groups, including NSWALC.These definitions must be consistent withthe other policies produced by DECC inrelation to when an AHIP is required.

The Draft Due Diligence Guidelinesencourage developers to check theAboriginal Heritage InformationManagement System (AHIMS) database toidentify potential Aboriginal places andobjects in their area. The AHIMS databasehas been developed primarily throughinformation presented with applications foran AHIP. It does not represent a completepicture of Aboriginal sites in NSW, and hasbeen criticised for including incorrectinformation.46

The current Draft Due Diligence Guidelinesdo not include a clear disclaimer as to thelimitations of the AHIMS database.

Advice must be included in the DueDiligence Guidelines that explains thelimitations of the data currently availablethrough AIHMS, and advises in more detailof other mapping and site databasesdevelopers can check, including thoseheld by LALCs and by Local Councils.

44 See the Logic Diagram included at page 9 of the Draft DueDiligence Guidelines.

45 See Draft Due Diligence Guidelines at page 5.

46 Concern about reliance on AHIMS was raised repeatedly byarchaeologists, consultants and Aboriginal community membersduring recent Information Sessions held by DECC in relation tothe Draft Community Consultation Requirements (May-June2009).


The Due Diligence Guidelines must berevised so that checking AHIMS is notdefined as a sufficient step by itself toconfirm that no sites of significance arelikely to exist.

Finally, the Draft Due Diligence Guidelinesdo not adequately reflect or explain thepurpose and benefit of consultation withAboriginal communities when determiningwhether an activity is likely to impact onAboriginal cultural heritage.

The Guidelines do not encourage relationshipbuilding between developers and localAboriginal representatives andorganisations, such as the LALC, which wouldallow sites to be more readily identified andpositive heritage outcomes to be achieved incooperation with Aboriginal communities.

The Due Diligence Guidelines requiresubstantial revision to ensure that theyare consistent with other DECC policies inrelation to the Aboriginal cultural heritageand consultation with the Aboriginalcommunity to determine the impact of anactivity.

The revised Guidelines must be releasedfor comment and consultation beforebeing finalised. NSWALC calls on the NSWMinister for the Environment to committhat no regulations adopting the DueDiligence Guidelines will be introduced orimplemented without proper consultationwith NSWALC and other relevant bodies.

c. Recommendations: Remedialdirections

The Omnibus Bill proposes new powers forthe Director General to direct a person whohas committed an offence to carry outremediation work to conserve, maintain orrestore damage to an Aboriginal object orplace.

DECC could choose to issue a remedialdirection in addition to, or instead of, takinglegal action. Similar powers already exist inother legislation, in relation to repairingdamage to the environment.47 If a personfails to comply with the direction theDirector General has the power to arrangefor the work to be carried out and to seekthe costs of the work from that person.

When issuing such a direction the DirectorGeneral may direct the person to consultwith the Aboriginal community.48 There is norequirement for the Director General tomake such directions as it is a discretionarypower.

NSWALC supports the proposedamendments which give the DirectorGeneral of DECC the power to issuedirections that a person take action toconserve, maintain or restore damage thathas been caused to Aboriginal culturalheritage.

When determining what remedial actionto take, it should be mandatory that theDirector General consult with the relevantAboriginal community to determine whataction is appropriate.

47 The proposed amendments will bring the enforcementprovisions of both the National Parks and Wildlife Act and theThreatened Species Act in line with other environmentallegislation including the Protection of the EnvironmentOperations Act 1997 and the Native Vegetation Act 2003.

48 See Schedule 1 [32] of the Omnibus Bill which sets out theproposed sections 91L, 91M and 91N.


Currently fines for damage to Aboriginalobjects and places go into the National ParksFund, which is managed by DECC.

NSWALC supports the direction of fines fordamage caused to Aboriginal culturalheritage towards restoration andcompensation for the community whichhas suffered the loss of its culturalheritage.

The Omnibus Bill also introduces Part 15,Division 3 of the National Parks and WildlifeAct, which broadens the powers of the courtto make restoration orders.49

Proposed section 194(1)(f) creates anobligation for the court to consider the viewsof Aboriginal persons when imposing apenalty.

NSWALC supports the amendments whichprovide more flexibility for the courts toissue penalties designed to compensatethe Aboriginal community for damage totheir cultural heritage.

d. Recommendations: More‘flexible’ AHIPs

The Omnibus Bill proposes a number ofchanges to the process for issuing AHIPs.

DECC has advised that these changes aredesigned to ‘streamline’ the process andreduce ‘red tape’. These changes areexpected to significantly cut ‘developmentlead times’.50

The Omnibus Bill broadens the scope ofAHIPs to allow for an AHIP to be issued for aspecified Aboriginal object, Aboriginal place,land, activity or person or specified classes ofAboriginal objects, Aboriginal places, land,activities or persons.51

DECC have suggested that: ‘This flexibilitywill benefit major developers within NSW (eglarge residential subdivisions) by allowing forthe issue of single permits over larger areasthat cover a range of stages in thedevelopment process. Currently, suchdevelopments often require multiple permitsthat can frustrate constructiontimeframes.’52

As outlined in considerable detail in previoussections of this submission, the large numberof AHIPs issued is a significant concern to theAboriginal community. The current AHIPsystem has led to an unacceptable rate ofdamage and destruction of Aboriginalcultural heritage and is heavily weighted infavour of development.

No evidence has been provided by DECC as towhy increased flexibility for applicantsapplying for AHIPs is needed or justified.Currently, applications for AHIPs are rarely, ifever, rejected. Answers to Questions onNotice in NSW Parliament have revealedthat:

· 72% of s90 consents to destroy wereapproved in 2005,

· 73% were approved in 2006,

· 92% were approved in 2007 and

· 100% were approved in 2008.53

DECC has advised that AHIPs are not refusedbecause DECC works with applicants toamend their applications to includeconditions to mitigate damage wherepossible, and encourages applicants whohave not provided sufficient information towithdraw their AHIP applications beforethey are officially refused.

49 See Schedule 1 [106] of the Omnibus Bill which sets out theproposed sections 190, 194(1)(f).

50 See explanatory information released by DECC with the Bill, asnoted above.


52 See page 3 of DECC’s Summary of the Omnibus Bill dated 30April 2009, as emailed to NSWALC.The version was revisedbefore being placed on the DECC website.

53 See Answer to Question on Notice Number 2091, as quoted atfootnote 22.


However, the number of appeals brought byAboriginal people against the issue of AHIPsgives further weight to the concern withinthe Aboriginal community that permits arebeing issued inappropriately over sites ofhigh significance to Aboriginal people.

Given that the current system for themanagement of Aboriginal culturalheritage through the issuing of AboriginalHeritage Impact Permits (AHIPs) has led towidescale destruction of Aboriginalcultural heritage, NSWALC cannot anddoes not support the proposedamendments which broaden the scope ofAHIPs.

The proposal to allow for a single AHIP tobe issued for specific ‘classes’ of Aboriginalobjects or Aboriginal places is of particularconcern.

Permits to approve damage or destructionto Aboriginal culture and heritage mustconsider the importance of that heritageto the particular Aboriginal community ineach case.

The ability of the Director General to issuea single AHIP for a particular type ofactivity, such as mining, is absolutelyopposed.

The changes would also allow AHIPs to beamended and varied. It is currently arequirement (outlined in DECC policy) thatAboriginal people be consulted when theissue of a permit is being considered. Theability of the Director General to amend anAHIP ‘as required’ leaves open the possibilitythat a permit which authorises destructioncould be significantly expanded without anycommunity input or a new cultural heritageassessment.

NSWALC strongly opposes new powers forthe Director General to amend or expandAHIPs ‘as required’. There must beconsultations with the Aboriginalcommunity in relation to any amendmentsand/or expansion of AHIPs.

e. Recommendations: Factors to beconsidered by the DirectorGeneral

Another significant change to the issuing ofAHIPs proposed by the Omnibus Bill relatesto the factors that will be considered by theDirector General in deciding whether toissue an AHIP.

Part 6 of the National Parks and Wildlife Actcurrently provides no express guidance as tothe matters to be taken into account by theDirector General of DECC when making herdecision. Generally when exercising herfunctions under the Act, the DirectorGeneral is to consider the objects of the Act,which include:

Section 2A

(1)(b) the conservation of objects, placesor features (not including biologicaldiversity) of cultural value within thelandscape, including, but not limited to:

(i) places, objects and features ofsignificance to Aboriginal people. …

DECC has developed policies which outline inmore detail the factors which are to beconsidered by the Director General and thedelegated staff working in DECC’sEnvironmental Protection and RegulatoryGroup, when considering the issue of apermit. These policies include the ‘Guide toDetermining and Issuing Aboriginal HeritageImpact Permits’ and ‘Operational Policy:Protecting Aboriginal Cultural Heritage’.

The Omnibus Bill proposes a list of factorsthat must be considered by Director Generalor her delegate in deciding whether to grantor refuse an AHIP, and for any decision tovary, transfer, suspend or revoke an AHIP.54

54 See Schedule 1 [28] of the Omnibus Bill which sets out theproposed sections 90-, 90A-K.


The list of factors are set out in the proposedsection 90K as follows:

(1) In making a decision in relation to anAboriginal heritage impact permit, theDirector-General must consider thefollowing matters:

(a) the objects of this Act,

(b) actual or likely harm to the Aboriginalobjects or Aboriginal place that arethe subject of the permit,

(c) practical measures that may be takento protect and conserve theAboriginal objects or Aboriginal placethat are the subject of the permit,

(d) practical measures that may be takento avoid or mitigate any actual orlikely harm to the Aboriginal objectsor Aboriginal place that are thesubject of the permit,

(e) the significance of the Aboriginalobjects or Aboriginal place that arethe subject of the permit,

(f) the results of any consultation by theapplicant with Aboriginal peopleregarding the Aboriginal objects orAboriginal place that are the subjectof the permit,

(g) the social and economic consequencesof making the decision,

(h) in connect with the permitapplications:

(i) any documents associated with theapplication, and

(ii) any public submission … made underthe Environmental Planning andAssessment Act 1979 …

(i) any other matters …

(2) The Director-General, in making adecision in relation to an Aboriginalheritage impact permit, is not required toconsider any matter other than thematters referred to in subsection (1).

The proposed factor s90K(1)(g) ‘the socialand economic consequences of making thedecision’ is a new factor not currentlyrequired to be considered by the DirectorGeneral or her delegate, under DECCpolicy.55

It appears that this factor is designed toensure that DECC consider the economicinterests of applicants, such as developers,when making a decision. The new proposedlist of factors also does not include therequirement that ‘the principles ofecologically sustainable development’ beconsidered, as currently required by DECCpolicy.

The Omnibus Bill does not prescribe whatweight should be given by the DirectorGeneral to each of these factors, forexample there is no requirement that theDirector-General prioritise the conservationof Aboriginal places or objects over economicconsequences.

NSWALC welcomes clarification in relationto the matters that the Director Generalmust take into consideration when makinga decision to issue an AHIP.

However the list of proposed factors mustprioritise the protection of Aboriginalcultural heritage.

55 The factors to be considered when evaluating an AHIPapplication are listed at page 16 of the EPRG’s ‘Guide toDetermining and Issuing AHIPs’ (February 2009). The factorslisted are:a. The adequacy of the application and the accompanying

information;b. The significance of the Aboriginal object or place;c. The likely impact of the proposal on the Aboriginal object or

place;d. Adequacy of any proposed measures to avoid or reduce

impacts;e. Consultation with registered local Aboriginal groups;f. The principles of ESD (economically sustainable development);g. Any applicable statutory planning matters related to the

application;h. Any issues raised in the submissions; andi. Any other relevant matters.


The list of factors does not include arequirement to consider representations byAboriginal people, only ‘the results of anyconsultation’.56

Under the current AHIP process, the resultsof consultation with the Aboriginalcommunity are included in a culturalheritage assessment prepared andsubmitted by the person applying for apermit to damage or destroy an Aboriginalsite or object. This process is of seriousconcern for the Aboriginal community, aswas repeatedly expressed in the informationsessions organised by DECC in May and June2009.57

DECC has advised that in practice if adeveloper or other applicant for an AHIPdoes not properly represent the results ofconsultations with the Aboriginal community,any Aboriginal group or person whodisagrees with the cultural heritage reportcan contact DECC to directly raise theirconcerns. DECC policies reflects that theseconcerns must be considered by the DirectorGeneral when making the decision to issuean AHIP.58

However, the Omnibus Bill’s proposed newsection 90K(2) makes it clear that theDirector General is not required to considerany other matters other than those listed at90K(1). If section 90K is not amended toinclude the consideration of independentrepresentations by Aboriginal peoples, itrisks winding back the already limited roleAboriginal people have in the AHIP process.

Proposed section 90K(1)(f) must beamended to include a requirement thatthe Director General consider the views of,or any representations made by,Aboriginal people. This includes whererepresentations are made independentlyof the formal consultation process.

f. Recommendations: Challenges toAHIPs

There are currently two separate processesfor challenging a decision relating to a AHIP:

· A merits appeal to the Minister for theEnvironment and Climate Change; and

· Judicial review proceedings in the Landand Environment Court.

A merits appeal involves a fresh decisionmade on the facts of the case. Currently aperson whose application for a consentunder section 90 of the National Parks andWildlife Act is refused or a person who is‘dissatisfied’ with any condition of a consentmay appeal to the Minister for theEnvironment and Climate Change.

The changes proposed by the Omnibus Billwould limit appeals to the Minister topersons ‘aggrieved’ because of a decisionto refuse an AHIP or a condition placed bythe Director General on the AHIP.59 There isno merits appeal available for a person‘aggrieved’ by a decision to allowdestruction of heritage through theissuing of an AHIP.

Judicial review by the Land and EnvironmentCourt of a decision relating to an AHIP is onlyavailable on limited administrative lawgrounds. If successful the AHIP will be setaside and it will be open for theDirectorGeneral to remake the decision inrelation to the AHIP. To date, Aboriginalpeople seeking to challenge a permitallowing for the destruction of their cultureand heritage have had limited successthrough the Land and Environment Court.60

NSWALC supports amendments to theNational Parks and Wildlife Act to allowmerit based appeals by Aboriginal peopleagainst the issuing of an AHIP to the Landand Environment Court.

56 See Schedule 1 [28] of the Omnibus Bill which sets outproposed section 90K(1)(f).

57 See also the Forum Summary, released by DECC with the DraftCommunity Consultation Requirements in May 2009, whichoutlines some of the key issues raised during culture andheritage consultations held by DECC in 2008.

58 See DECC Operational Policy, as noted above.

59 See Schedule 1 [28] of the Omnibus Bill which sets out theproposed section 90L.

60 See discussion of case law in Section 3 of this submission:Overview of the current culture and heritage system in NSW.


The Omnibus Bill proposes that a timerestriction of 3 months from the date thatpublic notice is given of any decision to issuean AHIP be imposed for any challenge to thevalidity of the AHIP in the Land andEnvironment Court.61

The amendment proposed by the OmnibusBill will not allow the validity of an AHIP to bequestioned in the Land and EnvironmentCourt where the conditions are subsequentlyvaried62 and the challenge is brought over 3months after public notice was given of theissuance of the AHIP in its original form.

The rights of Aboriginal people tochallenge the issuing of an AHIP must bestrengthened rather than wound back.NSWALC does not support the proposedtime limit of 3 months to challenge an AHIPin the Land and Environment Court. A timeperiod of 6 months would be moreappropriate.

The proposed time limit is particularlyproblematic given that there is no legislativerequirement for Aboriginal people or groupswho have registered as Registered

Aboriginal Parties and have contributed tothe cultural heritage assessment to beadvised when an AHIP is issued or varied.DECC has advised however that it is astandard condition of AHIPs that theRegistered Aboriginal Parties be notified.

A requirement must be inserted into theNational Parks and Wildlife Act whichrequires relevant Aboriginal groups to benotified immediately upon the issue orvariation of an AHIP.

The proposed section 90P should beamended to provide that any time periodfor an appeal runs from the date of noticeto the Aboriginal community of the issueof the AHIP or from the date of variation toan AHIP.

g. Recommendations: AboriginalCultural Heritage AdvisoryCommittee

The Aboriginal Cultural Heritage AdvisoryCommittee (ACHAC) is a committeeestablished under Part 3 of the NationalParks and Wildlife Act to advise the Ministerand the Director General about mattersrelating to the identification, assessmentand management of Aboriginal culturalheritage.63 ACHAC’s role includes advice onthe process for assessing Aboriginal heritageand issuing AHIPs.

The Omnibus Bill proposes to alter theconstitution of the Committee from 11 to 12members. NSWALC will retain the power tonominate one member and the HeritageCouncil of NSW will gain the right tonominate a member. The Director Generalwill have to the power to appoint a non-voting member. The proposed changes willalso require that all members of theAboriginal Cultural Heritage AdvisoryCommittee be Aboriginal persons.64

NSWALC welcomes the proposed changesto the membership of ACHAC.

61 See Schedule 1 [28] of the Omnibus Bill which sets out theproposed section 90P.

62 See Schedule 1 [28] of the Omnibus Bill which sets out theproposed section 90D.

63 See Section 28 and Schedule 9 of the National Parks and WildlifeAct.

64 See Schedule 1 [112] of the Omnibus Bill which sets out theproposed Schedule 9.


h. Recommendations: Jointmanagement of National Parks

Part 4A of the National Parks and WildlifeAct provides a process whereby land can behanded back to the registered AboriginalOwners but leased to the NSW Governmentto be run as a national park or other form ofreserve.

Joint management can be established overtwo types of land:

· Reserve land that is of ‘culturalsignificance’ and been added to Schedule14 of the National Parks and Wildlife Actby the NSW Parliament, and

· Crown land that is subject to anAboriginal land claim, for which theCrown Lands Minister is satisfied that theland would be claimable except for thefact that the land ‘is needed or likely tobe needed for the essential publicpurpose of nature conservation’ (s36A ofthe Aboriginal Land Rights Act).

A Part 4A lease back agreement isnegotiated between the Aboriginal ownersand the NSW Minister for the Environmentand Climate Change. If successful the land ishanded back on the condition that the landbe run as a park by an Aboriginal Board ofManagement which includes a majority ofregistered Aboriginal Owners.

The land title is held by the LALC on behalf ofthe Aboriginal Owners. There are five piecesof land currently under joint management inNSW, with some additional lands undernegotiation.

The Omnibus Bill proposes amendments tothe operation of Part 4A of the NationalParks and Wildlife Act. DECC has advised thatthese amendments as ‘minor machineryamendments’ to improve the effectivenessof the Act.65

The most significant change proposed is thatPart 4A be amended to provide that theMinister and the LALC are under noobligation to enter into and conductnegotiations under Part 4A of the NationalParks and Wildlife Act.66

Arguably this amendment would remove animplied obligation on the Minister for theEnvironment and Climate Change tonegotiate a hand-back for lands listed inSchedule 14 or for land that is subject to anAboriginal land claim. This amendment hasthe potential to significantly undermine thepark (and reserve) hand- back regime inNSW.

NSWALC strongly opposes the proposedamendment to section 71 which removesthe implied obligation for the Minister forthe Environment and Climate Change tonegotiate the hand-back of culturallysignificant park or reserve land to thetraditional Aboriginal Owners.

For more information about the proposedchanges see NSWALC Culture and HeritageFact Sheet 4 – ‘Proposed Changes to theJoint Management of National Parks (Part4A)’ which is available to download from theNSWALC website at www.alc.org.au.

65 See explanatory information released by DECC with the Bill, asnoted above.

66 See Schedule 1 [15] of the Omnibus Bill which sets out theproposed amendment to section 71J(3)


i. Recommendations: NewRegulations

As noted above the Omnibus Bill will createthe power to make a new wide range ofregulations under the National Parks andWildlife Act. This includes the power to makeregulations prescribing defences, includingdue diligence, against offences relating tothe damage or destruction of Aboriginalobjects or places.67

The proposed Omnibus Bill would alsoprovide the Minister for the Environmentand Climate Change with the power to makeregulations relating to consultation.

Proposed section 90N of the Omnibus Billstates that:

The regulations may make provision for orwith respect to the following:

(a) consultation that must be undertaken inrelation to an application that relates toan Aboriginal heritage impact permit(including the nature, extent and timingof the consultation),

(b) the persons, or classes of persons, whomust be so consulted (including but notlimited to Aboriginal people with acultural association with the object orland concerned),

(c) the opportunity of persons, or classes ofpersons, so consulted to makesubmissions as part of the consultation.

NSWALC supports the adoption intolegislation of requirements that Aboriginalpeople be consulted in relation to theirculture and heritage.

DECC has indicated that the regulations inrelation to consultation are yet to bedrafted. The intent is that the regulationsreflect the new Draft CommunityConsultation Requirements which werereleased in May 2009 for public comment.

As outlined in NSWALC’s separate submissionregarding the Draft Community ConsultationRequirements, the draft policy requiressignificant amendment before it should beadopted.

The proposed regulations must not bebased on the Draft CommunityConsultation Requirements, withoutsignificant amendments.

The planned consultation regulationsmust be released in draft form forconsultation with the Aboriginalcommunity before they are finalised andadopted.

NSWALC notes that DECC undertook a reviewin relation to new National Parks and WildlifeRegulations earlier this year, as the existingNational Parks and Wildlife Regulations aredue to expire in September 2009. Publicsubmissions on the regulations were invitedas part of this review.

However, at no time during the review didDECC raise the proposed new regulationsrelating to community consultation,defences against prosecution for destructionof Aboriginal cultural heritage or duediligence.

The community therefore did not have anopportunity to comment on the NationalParks and Wildlife Regulations now beingproposed.

67 See Schedule 1 [28] of the Omnibus Bill which sets out theproposed amendment to section 87(3) and (4)


6. Recognition of Aboriginal peoples’culture and heritage rights.

As indicated in the summary of the operationof the National Parks and Wildlife Act,included in this submission, the current law isnot designed to involve Aboriginal peopledirectly in the process for determining thesignificance of their cultural heritage, ordetermining what happens to Aboriginalplace or objects.

Instead, the National Parks and Wildlife Actplaces the power to make decisions relatingto Aboriginal cultural heritage with theDirector General of DECC.

NSWALC recognises that the Omnibus Bill isnot designed to achieve major reform to theexisting cultural heritage system. However,even within the existing system there areopportunities to better recognise thatAboriginal people are the primary decisionmakers in relation to their culture andheritage. This principle is promoted throughnumerous DECC and NSW Government policydocuments, but is not reflected in theNational Parks and Wildlife Act.

The recommendations noted in thissubmission are designed to further therecognition of the rights of Aboriginal peopleto control their culture and heritage and toincrease protection of Aboriginal culturalheritage in NSW for current and futuregenerations.

It is hoped that the NSW Government takesthis opportunity to extend the amendmentsto the National Parks and Wildlife Act tocreate a stronger regime for the protectionof Aboriginal cultural heritage, and toincrease Aboriginal peoples’ control overtheir cultural heritage.

MORE THAN FLORA AND FAUNA. 1 · MORE THAN FLORA AND FAUNA. 5 Executive Summary The NSW Aboriginal...

Documents

Transcript of MORE THAN FLORA AND FAUNA. 1 · MORE THAN FLORA AND FAUNA. 5 Executive Summary The NSW Aboriginal...