Aboriginal cultural heritage assessment and approvals

This page may be relevant if:

• Proposed clearing, excavation or other works may affect Aboriginal objects or a declared Aboriginal place
• A heritage search, assessment or consultation has identified cultural values that may affect a proposal
• You need to understand an Aboriginal heritage impact permit or heritage conditions in a project approval
• An unexpected find or allegation of harm raises questions about continuing work and notifying authorities

What this usually means

• The National Parks and Wildlife Act 1974 (NSW) protects Aboriginal objects and declared Aboriginal places. Protection of an Aboriginal object does not depend on it appearing in a database or heritage list. The Aboriginal Heritage Information Management System (AHIMS) records reported information; a search showing no recorded objects does not establish that none are present.
• Due diligence examines whether an activity could harm Aboriginal objects and whether further investigation is needed. It can support a defence to the strict liability offence of harming an Aboriginal object if the statutory requirements are met. It does not authorise harm to known objects or declared Aboriginal places.
• An Aboriginal heritage impact permit (AHIP) may be needed where harm cannot be avoided. Its application requires a cultural heritage assessment report and Aboriginal community consultation. The assessment addresses significance, likely harm and practical protection measures. Archaeological evidence and Aboriginal cultural knowledge have distinct roles; a survey alone does not resolve every cultural heritage issue.
• Ordinary development consent does not itself provide an AHIP. For authorised State significant development or approved State significant infrastructure, statutory exceptions can remove the separate AHIP requirement. The assessment requirements and approval conditions for the relevant pathway still need to be addressed. Other heritage listings and Commonwealth protections may raise separate requirements.

What commonly matters

1. 01

   The land, works and available evidence

   Review the whole area affected by the works, including access routes and temporary work areas. Previous disturbance, incomplete records or an earlier assessment may leave questions unresolved. Further investigation must itself follow the applicable legal requirements.

2. 02

   Aboriginal participation and cultural knowledge

   Identify the people who hold relevant cultural knowledge and the consultation process that applies. Allow time for participation, consideration of submissions and any required changes to the assessment. Sensitive cultural information needs appropriate handling.

3. 03

   Avoidance, conditions and project commitments

   A different layout or work method may avoid harm. Assessment, consultation and protective measures can affect cost and timing, and a permit may be refused or carry restrictive conditions. Check those matters before settling contracts, acquisition terms or a construction program.

4. 04

   Unexpected finds and possible harm

   Stop work that could harm the object and leave it in place while the applicable requirements are checked; moving it from the land may itself constitute harm. Where section 89A of the National Parks and Wildlife Act 1974 applies, notify the Secretary in the approved written form within a reasonable time after first becoming aware of its location, unless there are reasonable grounds to believe the Secretary already knows it. Check statutory and Code-based exceptions, approval conditions and any unexpected-finds procedure before moving or investigating the object. Preserve records of the find and work.

How we help

• Identify the heritage protections, planning pathway and any AHIP requirement or statutory exception
• Review due diligence, assessment reports and consultation processes with the relevant advisers
• Advise on permit applications, variations, conditions and measures to avoid or minimise harm
• Address cultural heritage obligations in transactions, access arrangements and project documents
• Advise on unexpected finds, regulatory enquiries, permit decisions and available challenge options